Builders, Woodworkers & Millwrights Local 1 (Glens Falls Contractors)

National Labor Relations Board - Board Decisions

Mar 15, 2004

341 N.L.R.B. 448 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 448
Builders, Woodworkers & Millwrights, Local Union
No. 1 (Glens Falls Contractors Association) and
Empire State Regional Council of Carpenters;
United Brotherhood of Carpenters and Joiners
of America, Local 229. Case 3–CB–7986
DECISION AND ORDER
March 15, 2004
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
MEISBURG
On August 21, 2003, Administrative Law Judge Mar-
garet M. Kern issued the attached decision. The Re-
spondent Union and the Charging Party each filed excep-
tions and a supporting brief, as well as an answering
brief. The General Counsel filed an answering brief to
the Respondent Union’s exceptions. The Respondent
Union and the Charging Party each filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,2
and to adopt the recommended Order as modified.3

1 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 Dry Wall 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.
The judge made several inadvertent errors: she stated that Lanny J.
Miller was an attorney; omitted “millwright work” in describing Charg-
ing Party Local 229’s jurisdiction; referred to Miller at one point in-
stead of Lloyd Martin; and suggested that a June 17, 2002 meeting
attended by members of Local 229 was a membership meeting when
the meeting actually was convened by “Local 229 Incorporated,” an
entity that owned the land underlying Local 229’s union hall. We
correct these inadvertent errors, which do not affect our decision.
2 The judge concluded that the Respondent Union violated Sec.
8(b)(1)(A) and 8(b)(2) by accepting recognition from employer-
members of the Glens Falls Contractors Association (GFCA), and
entering with them into a collective-bargaining agreement containing a
union-security clause, at a time when the employers already had recog-
nized and were bound to a collective-bargaining agreement with the
Charging Parties (Carpenters). The Carpenters contends that the judge,
in making this finding, unnecessarily found that the GFCA-Carpenters
relationship was an 8(f) relationship. We agree. Regardless of whether
this may have been a 9(a) or 8(f) relationship, the GFCA employers
were not free to unilaterally repudiate their agreement with the Carpen-
ters and recognize the Respondent. See Ana Colon, Inc., 266 NLRB
611, 613 (1983); John Deklewa & Sons, 282 NLRB 1375, 1385 (1987),
enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir.
1988), cert. denied 488 U.S. 889 (1988); and Precision Striping, 284
NLRB 1110 (1987). Accordingly, we do not pass on the judge’s find-
ing regarding the nature of the GFCA-Carpenters relationship.
3 We find merit in the General Counsel’s request that the heading of
the notice be changed from “Notice to Members” to “Notice to Em-
ployees and Members.” See, e.g., Communications Workers Local
ORDER
The National Labor Relations Board orders that the
Respondent, Builders, Woodworkers & Millwrights,
Local Union No. 1, its officers, agents, successors, and
assigns, and/or representatives, shall take the action set
forth in the recommended Order of the administrative
law judge, as modified below.
Substitute the attached notice for that of the adminis-
trative law judge.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT act as the collective-bargaining represen-
tative of employees employed by DLV, Inc., Pinchook &
Buckley Construction, Inc., or Adirondack Mechanical
Services, LLC, unless and until we have been certified
by the Board pursuant to a Board-conducted representa-
tion election.
WE WILL NOT maintain, enforce, or give effect to the
collective-bargaining agreement we entered with the
Glen Falls Contractors Association on June 13, 2002,
unless and until we have been certified by the Board pur-
suant to a Board-conducted representation election.
WE WILL NOT require employees employed by DLV,
Inc., Pinchook & Buckley Construction, Inc., or Adiron-
dack Mechanical Services, LLC, as a condition of their
employment, to become or remain our members unless
and until we have been certified by the Board pursuant to
a Board-conducted representation election.
WE WILL NOT threaten employees with loss of em-
ployment opportunities if they fail or refuse to become
our members.

11509 (AT&T), 283 NLRB 957, 959 (1987), enfd. mem. 841 F.2d 1128
(9th Cir. 1988). We shall modify the notice accordingly.
341 NLRB No. 54
BUILDERS, WOODWORKERS & MILLWRIGHTS LOCAL 1 (GLENN FALLS CONTRACTORS ASSN.) 449
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.

BUILDERS, WOODWORKERS & MILLWRIGHTS,
LOCAL UNION NO. 1

Robert Ellison, Esq., for the General Counsel.
Edward Crumb, Esq., for the Respondent.
John Byington, Esq. (Meyer, Suozzi, English & Klein, P.C.), for
the Charging Party.
DECISION
STATEMENT OF THE CASE
MARGARET M. KERN, Administrative Law Judge. This case
was tried before me on December 16 and 17, 2002,1 in Albany,
New York. The complaint, which issued on September 27,
2002, was based upon an unfair labor practice charge and an
amended charge filed on August 1 and September 20 by the
Empire State Regional Council of Carpenters (Regional Coun-
cil), and by the United Brotherhood of Carpenters and Joiners
of America, Local 229 (Local 229) (collectively the Charging
Party), against Builders, Woodworkers & Millwrights, Local
Union No. 1 (Local 1 or Respondent).
FINDINGS OF FACT
I. JURISDICTION
The Glens Falls Contractors Association (GFCA) is an or-
ganization composed of various employers engaged in the con-
struction industry, and one of the purposes of the GFCA is to
represent its employer-members in negotiating and administer-
ing collective-bargaining agreements with various unions, in-
cluding the Regional Council. Adirondack Mechanical Ser-
vices, LLC (Adirondack) is a general contractor in the con-
struction industry performing millwright work in the Ballston
Spa, New York area. It is also a member of the GFCA. Annu-
ally, Adirondack purchases and receives at its Ballston Spa,
New York facility goods and materials valued in excess of
$50,000 directly from points located outside the State of New
York.
Respondent admits, and I find, that at all material times Adi-
rondack has been an employer-member of the GFCA and en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. Respondent further admits, and I find, that
the GFCA, by virtue of its employer-member Adirondack being
engaged in commerce, has also been engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that it is a labor organization
within the meaning of Section 2(5) of the Act. Respondent
further admits, and I find, that the Regional Council is a labor
organization within the meaning of Section 2(5) of the Act.

1 All dates are in 2002 unless otherwise indicated.
III. THE FACTS
A. Collective-Bargaining History
1. The parties
DLV Inc. and Pinchook & Buckley Construction, Inc. have
been employer-members of the GFCA since the 1980’s. Law-
rence Thayer is the owner of DLV, and Stephen Pinchook is the
owner of Pinchook & Buckley. Adirondack became a member
of the GFCA in March, and Randy Edgerly is the owner of
Adirondack. Philip Allen was the business representative for
Local 229 and he was involved in negotiations on behalf of
Local 229 from 1974 until May. He is presently the principal
representative of Respondent Local 1.
2. The 1995–1998 agreement
The GFCA and Local 229 were party to a collective-
bargaining agreement effective May 1, 1995 to April 30, 1998.
That agreement contained the following language:

Inasmuch as the Union has submitted proof and the Employer
is satisfied that the Union represents a majority of its employ-
ees in the bargaining unit described herein, the Employer rec-
ognizes the Union, pursuant to Section 9(a) of the National
Labor Relations Act, as the exclusive collective bargaining
agent for all employees with that bargaining unit, on all pre-
sent and future jobsites within the jurisdiction of the Union,
unless and until such time as the Union loses its status as the
employee’s exclusive representative as a result of an NLRB
election requested by the employees. Notwithstanding the
aforementioned, the Union acknowledges that the Employer
shall have no continuing obligation to bargain for any succes-
sor agreement beyond the 30th day following the expiration
of this collective bargaining agreement. The Employer agrees
that it will not request an NLRB election.

The agreement also contained the following provisions that
drew a distinction between GFCA member-employers and non-
GFCA signatories:

Non-Association Employers – Inasmuch as the Union has
submitted proof and the Employer is satisfied that the Union
represents a majority of its employees in the bargaining unit
described herein, the Employer recognizes the Union, pursu-
ant to Section 9(a) of the National Labor Relations Act, as the
exclusive collective bargaining agent for all employees with
that bargaining unit, on all present and future jobsites with the
jurisdiction of the Union, unless and until such time as the
Union loses its status as the employees exclusive representa-
tive as a result of an NLRB election requested by the employ-
ees. The Employer agrees that it will not request an NLRB
election.

Glens Falls Contractors Association – All firms which are
members of Glens Falls Contractors Association and are par-
ties to the Glens Falls Contractors Association and United
Brotherhood of Carpenters & Joiners of America Local 229
building agreement, or have designated to Glens Falls Con-
tractors Association bargaining rights for United Brotherhood
of Carpenters & Joiners of America Local 229 building
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 450
agreement will be covered by Glens Falls Contractors Asso-
ciation recognition policy for the United Brotherhood of Car-
penters & Joiners of America Local 229.

Allen testified that at no time did any employer-member of
the GFCA request, nor did Local 229 ever present proof of
majority status. It was the understanding of the parties that
employer-members of the GFCA could “get out” of its agree-
ment with Local 229 once 30 days had elapsed following expi-
ration of the agreement. Out-of-town contractors who signed an
agreement with Local 229, however, were considered to have
extended 9(a) recognition. The rationale for the different treat-
ment, according to Allen, was that he and the employer-
members of the GFCA knew and trusted one another, and he
did not have that same relationship with out-of-town contrac-
tors.
Pinchook’s testified that in 1995, the GFCA sought exemp-
tion from the 9(a) language and was successful.
3. The 1998–1999 agreement
John Simmons is the assistant to the executive secretary-
treasurer of the Regional Council. Simmons testified that in
1998, he participated in the negotiations between Local 229 and
the GFCA for the successor agreement to the 1995–1998
agreement. The new agreement was for [a] 13-month term,
from May 1, 1998 to May 31, 1999, and contained the same
recognitional language as appeared in the 1995–1998 agree-
ment.
4. The 1999–2002 master agreement
In 1999, negotiations for an agreement to succeed the 1998–
1999 agreement were conducted on a broader scale. The Re-
gional Council negotiated on behalf of six local unions, includ-
ing Local 229, with seven multiemployer associations, includ-
ing the GFCA. Attorney Lanny Miller represented the GFCA at
these negotiations. The geographic area covered by the agree-
ment extended to 21 counties in upstate New York, referred to
as the “upper 21 counties.” The parties attempted to incorporate
the terms of seven preexisting local agreements into one master
contract, but agreement could not be reached on all issues.
They agreed to certain uniform language that became articles 1
through 20 and applied to all parties to the agreement. Those
terms and conditions of the preexisting local agreements that
did not conflict with articles 1 through 20, or with a document
referred to as the final management proposal, were incorporated
in a series of appendices. Local 229’s jurisdiction was set out in
article 9, Section 2 of the Local 229 appendix:

Carpenters and joiners, railroad carpenters, bench hands, stair
builders, furniture workers, shipwright and boat builders, reed
and rattan workers, ship carpenters, joiners and caulkers,
cabinet makers, casket and coffin makers, box makers, bridge,
dock, and wharf carpenters, car builders, floor layers, under-
pinners and timbermen, shorers and house movers, loggers,
lumber and sawmill workers, and all those engaged in the
running of wood-working machinery, or engaged as helpers
to any of the above divisions or sub-divisions.

Simmons testified there was specific discussion about the
9(a) recognitional language that had been contained in the
1995–1998 and 1998–1999 local agreements between Local
229 and the GFCA. According to Simmons, members of the
management team thought it was illegal for out-of-town con-
tractors working within Local 229’s jurisdiction to be bound to
a 9(a) agreement with Local 229, but not employer-members of
the GFCA. In the final management proposal, Lloyd Martin,
chief spokesperson for the associations, wrote to Simmons on
this issue:

NLRA Section 9(a) provisions in GRCA/Local 229 Agree-
ment must be removed because: An Employer who becomes
bound to a NLRA Section 9(a) agreement gives up virtually
forever its right to end its obligation to bargain with the local
union at the end of the labor agreement. In short, the Em-
ployer is solidly welded to the local union in perpetuity . . .
The provisions in GRCA/229 only exempt members of the
GFCA or those who designate bargaining rights to GFCA
from the 9(a) labor agreement. These provisions collectively,
if they were to remain in a Regional Agreement, would re-
quire all Employers signatory to the Regional Agreement to
become members of the GFCA or designate bargaining rights
to GFCA to avoid the 9(a) provisions binding them to Local
229 alone in perpetuity . . . These provisions, if they were to
remain in a Regional Agreement, violate equitable treatment
by placing the relationship of one Association and one Local
Union above that of the Regional Council and the Associa-
tions . . . This is discriminatory and unacceptable in a Re-
gional Agreement.

Simmons testified that he and other members of the Regional
Council’s negotiating committee consulted with their attorneys,
and the union attorneys agreed with the position articulated by
Miller. Simmons advised Allen that those out-of-town contrac-
tors who had previously signed agreements with Local 229 that
contained 9(a) language would continue to be bound by that
language, but that going forward, no new out-of-town contrac-
tors would be able to sign an agreement with 9(a) language.
The 1999–2002 master agreement was effective June 1, 1999
to May 31, 2002, and Miller executed the agreement on behalf
of the GFCA. There was no reference in articles 1 through 20 to
the type of recognition extended to the Regional Council or its
constituent locals. The 9(a) language that had appeared in the
previous agreements between Local 229 and the GFCA was
omitted from the Local 229 appendix.
Pinchook’s recollection of the 1999 negotiations was that he
and the other members of the GFCA “wanted to further clarify
that we were exempt and we asked for a mutual understanding
that we were not subject to the 9(a) language.”
The 2002 Negotiations
In January, Thayer spoke with the other employer-members
of the GFCA and with Allen about the 1999–2002 Master
Agreement set to expire on May 31. At Allen’s direction,
Thayer sent an undated letter, on GFCA letterhead, to John
Fuchs, executive secretary-treasurer of the Regional Council,
with copies to Pinchook and Allen. In that letter, Thayer asked
Fuchs to contact him to schedule a meeting to begin negotia-
tions for a new agreement.
BUILDERS, WOODWORKERS & MILLWRIGHTS LOCAL 1 (GLENN FALLS CONTRACTORS ASSN.) 451
On or about April 30, Thayer, Pinchook, and Edgerly2 had a
luncheon meeting with attorney Lanny Miller and asked him to
represent them in the upcoming negotiations. Pinchook testified
that Allen was also present. Following the meeting, Thayer sent
a confirming letter to Miller designating him as the GFCA’s
authorized representative.
On May 15, Miller called Thayer and asked him for an addi-
tional copy of Thayer’s April 30 letter designating him as the
GFCA’s representative. He also asked Thayer to provide him
with a listing of the members of the GFCA. That same day,
Thayer sent a fax to Miller, with copies to Pinchook and
Edgerly, advising him that the members of the GFCA were
DLV, Pinchook & Buckley, and Adirondack.
Patrick Morin is a regional director for the Regional Council.
Morin testified that at the outset of the 2002 negotiations, he
asked each employer association representative to provide a list
of the employers they represented. Miller told Morin he repre-
sented the GFCA and gave him a copy of Thayer’s May 15 fax.
Four bargaining sessions ensued and Morin and Simmons at-
tended every session. Both testified that Miller was also present
at every bargaining session and at no time did Miller indicate
that there were limitations on his authority to bargain on behalf
of the GFCA. Miller did not testify.
Thayer testified that after each bargaining session, Miller
faxed to the GFCA a written report on the progress of each
session. Thayer said he, Pinchook, and Edgerly discussed these
reports and relayed their views back to Miller.
On May 30, the parties reached a final agreement. Those
present in the room, which included Miller, read aloud from
their notes and affirmatively indicated their agreement. Since
the final session had been ongoing for many hours, it was
agreed that Simmons and Martin would remain to sign a two-
page memorandum of understanding, and that the other repre-
sentatives could leave. It was further agreed that the agreement
would later be circulated for the necessary signatures. Miller
was present when these arrangements were discussed and
voiced no objection. The new memorandum of agreement was
effective June 1, 2002 to May 31, 2006.
According to Thayer, on May 31, Miller faxed to him the
memorandum of understanding bearing the signatures of Martin
and Simmons. Thayer discussed the memorandum with the
other members of the GFCA. By letter dated June 3, Thayer
wrote to Miller:

In our April 30, 2002 letter you were designated as our au-
thorized representative for negotiations with Carpenters’ Lo-
cal #229. We have reviewed the draft of the proposed
“Memorandum of Understanding—‘Master Agreement’ “ ef-
fective June 1, 2002 and we are not satisfied with some of its
provisions. We wish to emphasize that you were authorized to
negotiate the Agreement but not to sign any Agreement on
our behalf without further authorization from us.

2 By this time, Edgerly and his company Adirondack had joined the
GFCA.
C. The Formation of Local 1
On May 7, in the midst of the 2002 negotiations, Fuchs re-
moved Allen as Regional Council representative for Local 229,
and ousted him from the negotiations. This was apparently the
culmination of a long-standing disagreement between Allen and
the Regional Council. Briefly stated, the dispute centered
around the Regional Council’s formation of a new local, Local
1163, with jurisdiction over all millwright work. Allen testified
that Local 229 had always been a mixed local of carpenters and
millwrights, and the creation of Local 1163 would strip Local
229 of its millwright jurisdiction, something he vehemently
opposed.
On May 30 and May 31, Allen distributed withdrawal forms
to members of Local 229, as well as authorization cards for
Local 1, a new union that he had formed. On June 11, attorney
Edward Crumb sent a letter to the GFCA on behalf of Local 1
seeking voluntary recognition. Crumb included authorization
cards with the letter and wrote that the cards, “should clearly
demonstrate to [the GFCA] that the Union now represents ei-
ther all or an overwhelming majority of those carpentry and
millwright employees currently employed by the three compa-
nies on whose behalf your Association bargains collectively.”
Thayer testified that enclosed with Crumb’s letter were authori-
zation cards signed by 17 of his 20 employees. Also enclosed
was a proposed collective-bargaining agreement.
Thayer, Pinchook and Edgerly met on two or three occasions
in early June. Thayer shared the fact that 17 out of 20 of his
employees had signed cards for Local 1, and Pinchook reported
that one of his two employees had also signed a card for Local
1. According to Pinchook, Edgerly had “paperwork” with him
regarding his employees’ Local 1 membership but he did not
see it.3 Pinchook testified it was clear to all three employers
that a majority of their respective employees had designated
Local 1 as their collective-bargaining representative. On June
13, Thayer, Pinchook, and Edgerly signed a collective-
bargaining agreement with Local 1 on behalf of their respective
companies. The bargaining unit covered by the Local 1 agree-
ment is defined in article 2, section (a):

Builders, carpenters and joiners, millwrights, bench hands,
stair builders, wood, wire, and metal lathers, acoustic and dry
wall applicators, floor layers and floor coverers, tile, marble,
and terrazzo workers and finishers, furniture workers, cabinet
makers, casket and coffin makers, box makers, reed and rattan
workers, bridge, dock and wharf carpenters, divers and ten-
ders, welders, shipwright and boat builders, ship carpenters,
joiners and caulkers, railroad carpenters, car builders, pile
drivers, underpinners and timbermen, shorers and house mov-
ers, loggers, lumber and sawmill workers, and all those en-
gaged in the running of woodworking machinery of any type,
or engaged as helpers or tenders to any of the above catego-
ries or sub-categories of employment.

Article 2, Section (c) sets forth the following recognitional
language:

3 Edgerly was not asked if any of his employees signed cards for Lo-
cal 1.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 452
The Employer agrees that, upon presentation of sufficient
evidence of the Union’s majority status amongst employees in
the bargaining unit described herein, the Employer will volun-
tarily recognize [Local 1] as the sole and exclusive bargaining
agent of its employees pursuant to Section 9(a) of the Na-
tional Labor Relations Act for all employees within the bar-
gaining unit described herein on all present and future job
sites within the jurisdiction of the Union during the term of
this Working Agreement.

Article 4, section (a) sets forth an 8-day union security clause.
Thayer testified that from June 13 until sometime in September
when a Board settlement agreement was reached with the Re-
gional Council, he withheld dues from employees’ paychecks
under the Local 1 agreement. He never remitted those dues to
Local 1, however, and following the settlement agreement the
dues were paid over to the Regional Council.
D. June 17 meeting
On June 17, Allen convened a meeting of the Local 229
membership. Allen testified the purpose of the meeting was to
discuss the International’s attempt to remove millwright work
from Local 229’s jurisdiction, to take over the property and
offices of Local 229, and to control the Local 229 pension fund.
Andrew Templeton has been a member of Local 229 for 16
years. After the meeting was over, he stayed to speak with Al-
len. He asked Allen what his intention was in creating Local 1.
He wanted to know if Allen was serious about Local 1, or if he
was just trying to make a point with the International. Accord-
ing to Templeton, Allen said he had already signed a number of
contractors including the three contractors in the GFCA. He
said he was also going to Utica to speak to someone about ex-
tending Local 1’s jurisdiction to that area. Allen said he had
brought the guys in from Glens Falls and that the “cream of the
crop” had signed with him. He then said, “If you don’t sign
with Local 1 you won’t work in this area.” Templeton said that
didn’t sound so good. Allen asked if Templeton was working
now and Templeton said no. Allen then added, “well we’re not
looking to get anybody hurt, so I am not going to, you know,
ask you to sign with me now.” Allen denied making these
statements to Templeton.
James Rivette testified that he and Allen are very good
friends and that he fully supported Allen’s creation of Local 1.
According to Rivette, he was in Allen’s presence for the entire
evening of June 17, save perhaps a few minutes here and there
to go to the bathroom or to get a drink. Rivette heard Local 229
members asking Allen if they should join Local 1, stay with
Local 229, or go with Local 1163. Rivette heard Allen tell each
member they should do what was best for them. He also heard
Allen say that he had some contractors already signed up and
he was working on signing up more. Rivette denied hearing
Allen tell Templeton, or anyone else, that if they did not sign
up with Local 1 they would not work again in the Glens Falls
area. On cross-examination, Rivette was asked if there could
have been a private conversation between Templeton and Al-
len, and Rivette responded, “To my knowledge no, but that’s
not the gospel either. There could have been, you know, but I
didn’t see it, no.”
IV. ANALYSIS
A. The 2002 Negotiations
On April 30, the three GFCA employers met with Miller and
asked him to represent them in negotiations as he had done in
the previous round of negotiations in 1999. That same day,
Thayer sent Miller a letter stating, “we hereby designate you
(Lanny J. Miller) as our authorized representative.” Miller
presented a fax from Thayer to the Regional Council stating
unequivocally and without limitation that Miller represented the
three employer members of the GFCA. Miller attended all of
the negotiation sessions, and was present on May 30 when the
final agreement was reached. Throughout this period, he was
held out as the GFCA’s bargaining agent with full bargaining
authority, and at no time prior to May 30 did anyone on behalf
of the GFCA do anything to alter that perception. The evidence
therefore firmly establishes Miller had actual and apparent
authority to negotiate and to reach an agreement on behalf of
the GFCA, and I so find. Allegany Aggregates, Inc., 311 NLRB
1165 (1993).
I further find, based on the credible testimony of Simmons
and Morin, that a full and complete agreement was reached on
May 30 and that all that remained after that date was for copies
of the agreement to be circulated to the parties for signature. It
was too late for Thayer to write on May 31, the day after an
agreement was reached, that Miller had been authorized to
negotiate, but not to sign an agreement. As stated by the Trial
Examiner in Aptos Seascape Corp., 194 NLRB 540, 544
(1971):

Stated otherwise, an agent appointed to negotiate a collective
bargaining contract is deemed to have apparent authority to
bind his principal in the absence of notice to the contrary . . .
the rule, which imposes no hardship on the principal, is dic-
tated by the statutory policy of promoting industrial peace by
encouraging collective bargaining. Clearly, the statutory pol-
icy would be thwarted by permitting a principal, after his
agent has reached agreement, to state for the first time that the
latter’s authority was limited . . .

The obligation of parties to sign a written agreement encom-
passing the terms agreed to during collective bargaining has
long been recognized. H.J. Heinz Co. v. NLRB, 311 U.S. 514,
525–526 (1941). That there was a delay in getting the typewrit-
ten document circulated to all the representatives for signature
did not relieve the GFCA from its obligation to execute the
agreement once it was received,4 nor did it alter the fact that the
GFCA was bound to the terms of the 2002–2006 memorandum
of agreement as of May 30.

4 The testimony at the hearing was that a Board settlement was
reached with the members of the GFCA in September and that since at
least that time, the GFCA employers have been living up to the terms of
the 2002–2006 memorandum of agreement. It is not clear from the
record when the memorandum of agreement was actually executed by
the members of the GFCA.
BUILDERS, WOODWORKERS & MILLWRIGHTS LOCAL 1 (GLENN FALLS CONTRACTORS ASSN.) 453
B. The nature of the relationship between the GFCA and the
Regional Council/Local 229: Section 9(a) versus Section 8(f)
Having established that the GFCA was bound to the terms of
the 2002–2006 memorandum of agreement as of May 30, the
question is whether the relationship between the GFCA and the
Regional Council/Local 229 was rooted in Section 9(a) or Sec-
tion 8(f). I conclude that this relationship has been, at all times
relevant to this case, an 8(f) relationship.
The GFCA is composed of employers engaged in the con-
struction industry and its relationship with the Regional Coun-
cil and Local 229 is, in the absence of evidence to the contrary,
presumed to be an 8(f) relationship rather than a Section 9(a)
relationship. The burden of proving the existence of a 9(a) rela-
tionship is on the party asserting that such a relationship exists,
in this case, counsel for the General Counsel. John Deklewa &
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); H.Y. Floors, 331 NLRB 304 (2000).
A 9(a) relationship may be established in one of two ways,
either through a Board-certified election, or through an em-
ployer’s voluntary grant of recognition. J & R Tile, Inc., 291
NLRB 1034, 1036 fn. 11 (1988). To satisfy the voluntary rec-
ognition option, the party asserting the 9(a) relationship must
unequivocally show that (1) the Union requested recognition as
the majority or Section 9(a) bargaining representative of the
unit employees; (2) the employer recognized the Union as the
majority or Section 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. These requirements may be established by the written
agreement of the parties. Central Illinois Construction, 335
NLRB 717, 721 (2001). It is not necessary for the written
agreement to refer explicitly to Section 9(a), provided the
agreement conclusively notifies the parties that a 9(a) relation-
ship is intended. Nova Plumbing, Inc., 336 NLRB 633, 637
(2001). To the extent that there is any ambiguity on the point, it
is proper to consider extrinsic evidence. Central Illinois, id. at
fn. 15.
In the 1995–1998 and 1998–1999 agreements, Local 229 and
the GFCA drew a distinction between the type of recognition
extended by the employer-members of the GFCA and the type
of recognition extended by non-GFCA signatories. The first
sentence of the recognitional language for both categories of
employers was identical and stated that Section 9(a) recognition
was being granted. However, in the case of the GFCA employ-
ers, a second, limiting sentence was inserted. In that second
sentence, the parties agreed that notwithstanding the first sen-
tence, GFCA employers had no obligation to bargain with the
union beyond the 30th day following expiration of the agree-
ment. This additional language is inconsistent with the statutory
scheme of Section 9(a) which provides a union with a continu-
ing presumption of majority status after contract expiration, and
one not limited to 30 days. Based upon the presence of this
additional, limiting language, I find the GFCA employers did
not recognize Local 229 as the Section 9(a) representative of
their employees. To the extent that there is ambiguity on this
point, however, there is ample extrinsic evidence in the record
to establish that it was never the intention of the GFCA em-
ployers to extend Section 9(a) recognition to Local 229.
Allen testified that it was always the understanding of the
parties that the GFCA employers could “get out” of its agree-
ment with Local 229 once 30 days had elapsed after the expira-
tion of the agreement. Pinchook’s recollection was that in 1995,
the GFCA sought exemption from the 9(a) language and was
successful, and that the point was reiterated during the 1999
negotiations when there was “a mutual understanding that we
were not subject to the 9(a) language.” In management’s final
proposal in 1999, the associations’ chief negotiator wrote, “the
provisions in GFCA/229 only exempt members of the GFCA or
those who designate bargaining rights to GFCA from the 9(a)
labor agreement,” and Simmons testified that the Regional
Council agreed with this assessment. The 9(a) language that
appeared in the 1995–1998 and 1998–1999 agreements did not
appear in 1999–2002 master agreement, or in the Local 229
appendix to that agreement. Nor did 9(a) language appear in the
2002–2006 memorandum of agreement. Based upon all of these
facts, I find counsel for the General Counsel has failed to prove
that either Local 229 or the Regional Council was, at any time
material to this case, the Section 9(a) representative of the em-
ployer-members of the GFCA as alleged in paragraph VII(c) of
the complaint. The relationship between the employer-members
of the GFCA and Local 229 and the Regional Council is, and
has been, an 8(f) relationship.5
C. The Relationship between GFCA and Local 1
Respondent maintains that the GFCA extended 9(a) as op-
posed to 8(f) recognition to Local 1 on June 13. I find it unnec-
essary to reach this issue since the question is whether the
GFCA could lawfully extend any type of recognition to Local 1
at a time when it was bound to the terms of an 8(f) agreement
with the Regional Council and Local 229.
On June 13, 2 weeks after the employer-members of the
GFCA became bound to the 2002–2006 memorandum of
agreement, they signed a collective-bargaining agreement with
Local 1 covering the same employees. Respondent offers the
following five-step analysis in defense of that recognition: first,
Respondent argues the relationship between the GFCA and the
Regional Council/Local 229 was an 8(f) relationship; second,
that following the expiration of the 1999–2002 Master Agree-
ment, the GFCA was free to repudiate its relationship with the
Regional Council/Local 229; third, the GFCA was not bound to
the results of the association-wide bargaining that culminated in
an agreement on May 30 because its agent had only limited

5 In October 2001, Adirondack executed a copy of an agreement be-
tween the Regional Council and the Construction Contractors Associa-
tion of the Hudson Valley, Inc. which agreement covered the “lower 9
counties” of New York State. The Charging Party points to 9(a) lan-
guage that appears in that agreement to bolster its argument that the
GFCA extended 9(a) recognition to Local 229. Adirondack was not a
member of the GFCA when it executed the Construction Contractors
Association agreement, and the agreement covers a different geo-
graphic area than is covered by Local 229 and the GFCA. The terms of
that agreement are therefore not relevant to the complaint allegations
that center on the relationship among the GFCA, the Regional Council,
Local 229, and Local 1.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 454
bargaining authority; fourth, that even if the GFCA was bound
to the agreement reached on May 30, because it was an 8(f)
agreement it was voidable during its term; and fifth, the GFCA
was free to extend 9(a) recognition to Local 1 upon a showing
of majority support.
I agree with Respondent’s position that the relationship be-
tween the GFCA and the Regional Council/Local 229 is, and
has been, an 8(f) relationship, and that the GFCA’s recognition
of Local 1 occurred after the expiration of the 1999–2002 Mas-
ter Agreement. It is not true, however, that the GFCA was not
bound to the agreement reached by the parties on May 30. For
the reasons already stated, a full and complete agreement for a
successor collective-bargaining agreement was reached on that
date and the GFCA was bound to that agreement. Respondent’s
next argument, that even if there was an 8(f) agreement in ef-
fect as of May 30 it was voidable during its term, is plainly
without merit and Respondent’s reliance on pre-Deklewa cases
in support of this argument is in error. Under Deklewa, an 8(f)
agreement may not be repudiated during its term.
Having dispensed with the first four arguments raised by Re-
spondent, the final issue is whether a construction industry
employer can, during the term of an 8(f) agreement, extend
recognition to a different union for the same employees. I con-
clude that it cannot under the principles of Deklewa.
In Deklewa, the Board enunciated four principles applicable
in 8(f) cases: (1) a collective-bargaining agreement permitted
by Section 8(f) shall be enforceable through the mechanisms of
Section 8(a)(5) and Section 8(b)(3); (2) such agreements will
not bar the processing of valid petitions filed pursuant to Sec-
tion 9(c) and Section 9(e); (3) in processing such petitions, the
appropriate unit normally will be the single employer’s em-
ployees covered by the agreement; and (4) upon the expiration
of such agreements, the signatory union will enjoy no presump-
tion of majority status, and either party may repudiate the 8(f)
bargaining relationship. John Deklewa & 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).
An 8(f) contract can only be repudiated during its term through
the Board’s election processes. Id. at 1385 fn. 45. A construc-
tion industry employer who is party to an 8(f) agreement may
not, therefore, during the term of that agreement, extend volun-
tary recognition to a second union for the same bargaining unit
of employees, regardless of whether that recognition is pursuant
to 8(f) or 9(a), absent a Board-conducted election. Compare,
Precision Striping, Inc., 284 NLRB 1110, 1112 (1987) (em-
ployer’s repudiation of 8(f) agreement following a secret ballot
poll of its unit employees, who voted overwhelmingly against
union representation, violated Section 8(a)(5)). Given these
principles, Respondent’s acceptance of recognition from the
GFCA employers as the collective-bargaining representative of
employees who were already represented by another union, and
covered by the terms of a Section 8(f) agreement, violated Sec-
tion 8(b)(1)(A) of the Act. Respondent further violated Section
8(b)(2) of the Act by entering into a collective-bargaining
agreement with the GFCA employers that contained a union
security clause. Stockton Door Co., 218 NLRB 1053, 1055
(1975), enfd. 547 F.2d 489 (9th Cir. 1976), cert. denied 434
U.S. 834 (1977).
D. Allen’s June 17 threat
I credit the testimony of Templeton that on June 17, Allen
told him that if he did not become a member of Local 1 he
would not work in the Glens Falls area, and I do so for several
reasons. First, Templeton was a credible witness and Allen was
not. Templeton testified in a straightforward, responsive man-
ner, and cross-examination failed to elicit any reason for him to
fabricate his testimony. Allen, on the other hand, had much at
stake in this case and his testimony was an uncompromising
attempt to advance the interests of Respondent Local 1.
Several examples of Allen’s lack of credibility can be readily
discerned from the record. First, Respondent took the position
in this case that the relationship between the GFCA and Local 1
is a 9(a) relationship. In a pretrial affidavit, however, Allen
made the statement that it was a “conditional 9(a) relationship.”
When asked on cross-examination what he meant by the term
“conditional 9(a) relationship,” Allen said he did not know. In
another example, Pinchook testified, without contradiction, that
Allen was present at the luncheon meeting on April 30 when
Miller was retained by the GFCA to represent its members in
negotiations. When Allen was asked about his knowledge of
the extent of Miller’s authority to negotiate on behalf of the
GFCA, he became confused and contradictory. He testified that
he first discussed the purported limits on Miller’s authority with
the members of the GFCA on or about May 30 when the
memorandum of understanding was reached. He then changed
his testimony and said that he first discussed this with them in
early May, when negotiations were beginning. He then changed
his testimony again and said this topic was first discussed on
June 17, after he and the GFCA had already executed the Local
1 agreement. The actual and apparent authority of Miller to
negotiate on behalf of the GFCA is a central issue in this case,
and Allen’s unwillingness to testify in a forthright manner on
this issue leads me to discredit him as a witness.
Second, I do not rely on Rivette’s testimony that he did not
witness Allen threatening Templeton. Rivette admitted that it
was possible that this conversation took place out of his pres-
ence.
Finally, that Allen made the statement attributed to him by
Templeton is consistent with the other evidence in the case. At
the time of the June 17 meeting, there was, to say the least, bad
blood between Allen and the Carpenters’ Union. Allen had
been physically ousted from the negotiations between the Re-
gional Council and the associations in early May, and as soon
as it became clear that an agreement had been reached between
the parties on May 30, Allen immediately began soliciting em-
ployees to withdraw from membership in Local 229 and to join
the newly formed Local 1. By the time of the June 17 meeting,
Allen had a signed collective-bargaining agreement with the
three employer-members of the GFCA and that agreement con-
tained a union-security clause. Thus, when Templeton asked
Allen if he was serious about Local 1, it was entirely logical
that Allen told him that he had already signed up the three con-
tractors in the Glens Falls area, and that if Templeton wanted to
work in the Glens Falls area, he would have to sign up with
Local 1 as well. In essence, Allen was conveying that there was
a union security clause in the Local 1 agreement and that if
BUILDERS, WOODWORKERS & MILLWRIGHTS LOCAL 1 (GLENN FALLS CONTRACTORS ASSN.) 455
Templeton went to work for a GFCA employer, Allen intended
to enforce that clause.
For all of these reasons, I credit the testimony of Templeton
and I find that on June 17, Allen threatened Templeton with
loss of employment if he did not become a member of Local 1.
Allen’s statement violated Section 8(b)(1)(A) of the Act.
CONCLUSIONS OF LAW
1. Adirondack Mechanical Services, LLC is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. The Glens Falls Contractors Association, by
virtue of its employer-member Adirondack Mechanical Ser-
vices, LLC, is engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Respondent Builders, Woodworkers & Millwrights, Local
Union No. 1 is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The Empire State Regional Council of Carpenters is a la-
bor organization within the meaning of Section 2(5) of the Act.
4. On June 13, 2002, Respondent violated Section
8(b)(1)(A) and 8(b)(2) of the Act by accepting recognition as
the collective-bargaining representative of employees employed
by DLV, Inc., Pinchook & Buckley Construction, Inc., and
Adirondack Mechanical Services, Inc. at a time when those
employees were already represented for the purposes of collec-
tive-bargaining by the Empire State Regional Council of Car-
penters, and by entering into a collective-bargaining agreement
with these employers that contained a union-security clause.
5. On June 17, 2002, Respondent, by Philip Allen, violated
Section 8(b)(1)(A) of the Act by threatening an employee with
loss of employment if the employee did not become a member
of Builders, Woodworkers & Millwrights, Local Union No. 1.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.6
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER
The Respondent, Builders, Woodworkers & Millwrights,
Local Union No. 1, South Glens Falls, New York, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Acting as the collective-bargaining representative of em-
ployees employed by DLV, Inc., Pinchook & Buckley Con-
struction, Inc., and Adirondack Mechanical Services, LLC

6 The evidence indicates that Respondent did not receive dues as a
result of enforcement of the unlawful union-security clause. Nor has
counsel for the General Counsel requested that employees be reim-
bursed for dues paid to Respondent. I therefore have not included a
provision for a make-whole remedy.
7 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 pur-
poses.
unless and until it has been certified by the Board pursuant to a
Board-conducted representation election.
(b) Maintaining, enforcing, or giving effect to the collective-
bargaining agreement entered into with the Glens Falls Con-
tractors Association on June 13, 2002, unless and until it has
been certified by the Board pursuant to a Board-conducted
representation election.
(c) Requiring that employees employed by DLV, Inc., Pin-
chook & Buckley Construction, Inc., and Adirondack Mechani-
cal Services, LLC, as a condition of employment, become or
remain members of Builders, Woodworkers & Millwrights,
Local Union No. 1, unless and until it has been certified by the
Board pursuant to a Board-conducted representation election.
(d) Threatening employees with loss of employment oppor-
tunities if they fail or refuse to become members of Builders,
Woodworkers & Millwrights, Local Union No. 1.
(e) In any like or related manner restraining or coercing em-
ployees 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) Within 14 days after service by the Region, post at its
union office in South Glens Falls, New York, or wherever else
located, copies of the attached notice marked “Appendix.”8
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 3, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent immedi-
ately upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, Respondent has gone
out of business or closed its offices, Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by DLV, Inc.,
Pinchook & Buckley Construction, Inc., and Adirondack Me-
chanical Services, LLC, at any time since June 13, 2002.
(b) Sign and return to the Regional Director sufficient cop-
ies of the notice for posting by DLV, Inc., Pinchook & Buckley
Construction, Inc., and Adirondack Mechanical Services, LLC,
if willing, at all places where notices to employees are custom-
arily posted.
(c) 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.

8 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.”