Custom Floors, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 5, 2007

28-CA-021226 (N.L.R.B. Sep. 5, 2007)

JD(SF)-26-07
Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES
CUSTOM FLOORS, INC.
and Case 28-CA-21226
J & R FLOORING, INC.
d/b/a J. PICINI FLOORING
and Case 28-CA-21229
FREEMAN’S CARPET SERVICE, INC.
and Case 28-CA-21230
FCS FLOORING, INC.
and Case 28-CA-21231
FLOORING SOLUTIONS OF
NEVADA, INC., d/b/a FSI
and Case 28-CA-21233
INTERNATIONAL UNION OF
PAINTERS AND ALLIED TRADES,
DISTRICT COUNCIL 15
Mara-Louise Anzalone, Atty., Counsel for the General Counsel,
Las Vegas, Nevada.
Gregory E. Smith and Joseph T. Prete, Attys., Smith & Kotchka,
Counsel for Respondents Custom Floors, Inc., J&R Flooring, Inc.
d/b/a Picini Flooring, Freeman’s Carpet Service, Inc., FCS Flooring, Inc.,
Las Vegas, Nevada.
Thomas A. Lenz, Atkinson, Andelson, Loya, Ruud & Romo,
Counsel for Respondent Flooring Solutions of Nevada, Inc.
d/b/a FSI, Cerritos, California
David A. Rosenfeld, Atty., for the Charging Party,
Los Angeles, California
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DECISION
I. Statement of the Case
Lana H. Parke, Administrative Law Judge. This matter was tried in Las Vegas,
Nevada on May 29 through 30, 2007 upon a Consolidated Complaint (the Complaint) issued
March 30, 20071 by the Regional Director of Region 28 of the National Labor Relations
Board (the Board) based upon charges filed by the International Union of Painters and Allied
Trades, District Council 15 (the District Council.) The Complaint, as amended, alleges
Custom Floors, Inc. (Respondent Custom), J&R Flooring, Inc. d/b/a Picini Flooring
(Respondent Picini), Freeman’s Carpet Service, Inc. (Respondent Freeman’s), FCS
Flooring, Inc., (Respondent FCS) (collectively the non-FSI Respondents), and Flooring
Solutions of Nevada, Inc. d/b/a FSI (Respondent FSI) (the non-FSI Respondents and
Respondent FSI are collectively referred to herein as the Respondents) violated Sections
8(a)(1) and (5) of the National Labor Relations Act (the Act) by failing and refusing to honor
the results of third party card checks conducted pursuant to Article 4 of a collective-
bargaining agreement between, respectively, each of the Respondents and International
Union of Painters & Allied Trades Local #159 (Local #159).2 The Respondents essentially
denied all allegations of unlawful conduct.
II. Issues
Did the non-FSI Respondents and Respondent FSI violate Section 8(a)(1) and (5) of
the Act by failing to continue in effect all the terms and conditions of the collective-
bargaining agreement effective February 1, 2004 through January 31, 2007 between,
respectively, Respondent Custom, Respondent Picini, Respondent Freeman’s, Respondent
FCS, Respondent FSI and Local #159 by failing and refusing to honor the results of third
party card checks conducted pursuant to Article 4 of said collective-bargaining agreement
and by failing and refusing to recognize the Union as the exclusive collective-bargaining
representative of each respective unit pursuant to 9(a) of the Act?
III. Jurisdiction
Respondent Custom, a Nevada corporation with a facility and place of business
located in Las Vegas, Nevada, has been engaged in business as a commercial and
industrial flooring contractor in the construction industry.3 During the 12-month period
ending February 1, Respondent Custom, in connection with its construction business
annually purchased and received at its facility goods valued in excess of $50,000 directly
from points outside the State of Nevada.

1 All dates herein are 2007 unless otherwise specified.
2 The complaint refers to the District Council and Local #159 indistinguishably as “the
Union.” Herein, the two entities are collectively called “the Union.”
3 The parties entered into a Joint Stipulation of facts (Joint Stipulation), which largely
forms the evidence herein. Unless otherwise explained, findings of fact herein are based on
party admissions, stipulations, including the Joint Stipulation, and uncontroverted testimony.
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Respondent Picini, a Nevada corporation with a facility and place of business located
in Las Vegas, Nevada, has been engaged in business as a commercial and industrial
flooring contractor in the construction industry. During the 12-month period ending
February 1, Respondent Picini, in connection with its construction business annually
purchased and received at its facility goods valued in excess of $50,000 directly from points
outside the State of Nevada.
Respondent Freeman’s, a Nevada corporation with a facility and place of business
located in Las Vegas, Nevada has been engaged in business as a commercial and
industrial flooring contractor in the construction industry. During the 12-month period ending
February 1, Respondent Freeman’s, in connection with its construction business, annually
purchased and received at its facility goods valued in excess of $50,000 directly from points
outside the State of Nevada.
Respondent FCS, a Nevada corporation with a facility and place of business located
in North Las Vegas, Nevada has been engaged in business as a commercial and industrial
flooring contractor in the construction industry. During the 12-month period ending
February 1, Respondent FCS, in connection with its construction business, annually
purchased and received at its facility goods valued in excess of $50,000 directly from points
outside the State of Nevada.
Respondent FSI, a Nevada corporation with a facility and place of business located
in Las Vegas, Nevada has been engaged in business as a commercial and industrial
flooring contractor in the construction industry. During the 12-month period ending
February 1, Respondent FSI, in connection with its construction business, annually
purchased and received at its facility goods valued in excess of $50,000 directly from points
outside the State of Nevada.
The non-FSI Respondents and Respondent FSI respectively admit, and I find, each
has at all relevant times been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and the District Council and Local #159 are labor
organizations within the meaning of Section 2(5) of the Act.
IV. The Facts
A. Collective-bargaining Relationships of
the non-FSI Respondents and Respondent FSI and the Union
Between February 1, 2004 and January 31, the non-FSI Respondents were
signatory to a collective-bargaining agreement (the Master Agreement) between Local #159
and the Independent Floorcovering Contractors of Nevada entitled “Floorcoverers Master
Agreement.” Respondent FSI was bound to the Master Agreement pursuant to a
Memorandum of Understanding between it and the Union dated September 14, 2004.4
These bargaining relationships were governed by Section 8(f) of the Act.
Each of the above-described collective-bargaining agreements by its terms covers
the following unit of employee:

4 Although the Joint Stipulation calls this agreement a “Memorandum of Agreement,” the
referenced document is entitled “Memorandum of Understanding.”
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All full-time and regular part-time Floorcovering Handlers, Apprentices,
Journeymen, and Foremen employees, excluding all other employees, office
clerical employees, professional employees, guards, and supervisors as
defined in the Act.5
The Master Agreement contains the following provision (Article 4):
Article 4
Union Recognition &
Territorial Jurisdiction
The Employer hereby recognizes the Union as the sole and exclusive
bargaining agent of employees classified herein who are engaged to
perform work covered by this Agreement in the area defined as Clark,
Lincoln, Nye and Esmeralda Counties in the State of Nevada. The
Employer agrees that if a majority of its employees authorize the
Union to represent them in collective bargaining, the Employer will
recognize the Union as the NLRA Section 9(a) majority collective
bargaining agent for all employees performing work within the
jurisdiction of this Agreement. The Employer agrees furthermore
upon demand by the Union to submit to a third party card check to
determine the majority status of the Union. Any disputes concerning
this provision shall be resolved by expedited arbitration under the
terms of this Agreement.
The Master Agreement further provides, at Article 22, for a Floorcovering Joint
Committee to administer a final and binding grievance and arbitration procedure
(Grievance/Arbitration Clause). The Grievance/Arbitration Clause vests the Joint Committee
with power to adjust all disputes and grievances arising out of the application or
interpretation of the Master Agreement.
During December 2006, the Union obtained union authorization cards from unit
employees of the non-FSI Respondents and Respondent FSI. Followed by spaces for
name, address, and employment information, the cards bore the following legend:
AUTHORIZATION FOR REPRESENTATION
I authorize the International Union of Painters and Allied Trades or its
affiliated Local Union or District Council to act as my exclusive collective
bargaining representative with any present or future employer in all matters
pertaining to wages, hours and other conditions of employment. I understand
that this authorization can be used by the union to petition for an NLRB
election or obtain recognition from my employer without an election. I
understand that revocation of my authorization can only be done in writing.

5 The Respondent FSI admitted, but the non-FSI Respondents denied, complaint
allegations that the described unit was an appropriate unit of employees for purposes of
collective bargaining within the meaning of Section 9(b) of the Act. The non-FSI
Respondents having provided no evidence as to inappropriateness of the units set forth in
their collective-bargaining agreements with the Union, I find the units appropriate within the
meaning of Section 8(9)(b) of the Act.
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B. The Union’s Card Check for Unit Employees
of Respondent FSI
By letter dated December 13, 2006, the Union notified Respondent FSI, inter alios, of
its intent to modify the terms and conditions of the Master Agreement upon its January 31
expiration date. By letter dated December 15, 2006, Bryan Price (Mr. Price), vice-president
of Respondent FSI notified the Union of the company’s intent to terminate its extant
Memorandum of Understanding with the Union upon the expiration of those contracts.
By letter dated January 17, the Union demanded, in accordance with Article 4, that
Respondent FSI submit to a third party card check to determine majority status of the Union,
stating, in pertinent part:
To achieve a true and consistent card check, the Union has secured a
majority of authorization cards of workers employed by your company
according to your most recent remittance report, which was filed with our
office in December of 2006 that covered hours worked and or paid during the
period of 10/28/2006 to 11/24/2006.
…
[T]he Union is prepared [to conduct a third party card check] on Tuesday
January 23 at 9 am at your office. The Union has chosen Ms. Sylvia
Courtney, an attorney experienced in labor law issues to act as the third party
in this matter.
By letter dated January 18, Respondent FSI stated its unavailability on January 23.
By letter dated January 22, the Union asked Respondent FSI to name dates and times of
availability for the remainder of the week for participation in a card check. Upon
Respondent FSI’s failure to respond, the Union, by certified letter and facsimile transmission
dated January 25, wrote to Respondent FSI, in pertinent part, as follows:
The Union has made repeated attempts to peacefully settle what we believe
to be a grievance. Your failure to respond to requests for meetings to
determine whether or not the Union in fact has 9(a) status in accordance with
Article 4 of the current Contract is disappointing.
Since it appears that it is very difficult to set up a meeting with you to adjust
this grievance, you will find a copy of the most recent remittance report from
your company received in our office last week representing hours worked by
individuals covered by the current Contract during the most recent month
(December 2006).
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Additionally you will find copies of signed Authorization for Representation
Cards that we have received from a majority of those individuals referred to
above6…As the 9(a) representative of your employees, it is my duty to inform
you that you are bound to negotiate in good faith with the Union for no less
than one year.
On January 29, Mr. Price emailed Mr. Mallory, informing him that prospects for a
meeting that day or the next were not good, but “maybe” he would be available the following
day (January 31).7
By certified mail and facsimile transmission on January 30, the Union notified
Mr. Price as follows:
The Union believes that you have been delaying meeting with its officials to
discuss whether or not your company’s employees have designated the
Union as their sole and exclusive bargaining representative as defined by
section 9(a) of the [Act]. The Union is utilizing the most recent remittance
report submitted by your company to determine the bargaining unit and
having done so believes that here is a strong majority of your employees who
have submitted authorization cards.
The union is meeting with [sic] at 12 pm today at the offices of Father
Machaca [sic] at the Church Amistad Christiana…Father Machaca [sic]…has
been designated by the Union as a third party and considered neutral. The
Union is requesting your presence at this meeting.
On January 30, the Union filed a representation petition with the Board for a unit of
Respondent FSI’s employees. On the same day, in the presence of two union
representatives and in the absence of any representative of Respondent FSI, Father
Menchaca, a local religious leader, conducted a card check at the Church Cristiana Amistad
in Las Vegas by comparing the signatures of union authorization cards to the names of
employees listed on the most recent remittance report submitted by Respondent FSI to the
Union for employee hours worked between December 1 and December 23, 20068
(Respondent FSI Remittance Reports). The card check revealed that the Union had
obtained authorization cards from a majority of Respondent FSI’s unit employees as named
on Respondent FSI Remittance Reports.

6 The Union’s January 25 communication to Respondent FSI enclosed copies of 17 signed
union authorization cards. Although there is no specific evidence Mr. Price reviewed the
copies, he testified he had no doubt the Union had representation cards from a majority of
the employees, but he did have a doubt as to how they were obtained.
7 At the hearing, Mr. Price admitted he “pretty much” had no intention of meeting with the
Union during the week of January 29. Although Mr. Price testified he was not unwilling to
utilize a card check procedure in determining the Union’s majority status, he also testified
the company’s position was that “an election was the fairest and the only way to determine
[what] the employees wanted.”
8 The Joint Stipulation of Facts inadvertently states the period as December 1 and
December 23, 2007.
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Following the card check, Father Menchaca executed a ”Memorandum
Acknowledging Verification of Authorization for Representation Cards,” (Verification
Memorandum) in which he verified that of 22 FSI employees listed on Respondent FSI’s
remittance report, 20 had signed authorization cards. Later that day, Mr. Mallory delivered
copies of the Verification Memorandum to Respondent FSI, and followed up with an email to
Mr. Price suggesting a meeting for the following day, January 31, to discuss negotiations.
By responsive email, Mr. Price declined to meet with Mr. Mallory as he had two other
meetings and did not feel well. Later that same day, the Union, in its asserted capacity as
the 9(a) bargaining representative of Respondent FSI’s employees, by certified mail and
facsimile transmission, proposed bargaining dates with Respondent FSI.
By letter to Mr. Price dated February 16, the Union repeated its request for
negotiations. By letter dated February 16, Respondent FSI insisted that its only relationship
with the union was under 8(f) of the Act, which relationship ended upon the January 31
expiration of the Master Agreement. Ensuing communications between the Union and
Respondent FSI hewed to the same respective positions.
Following January 30, Respondent FSI has not engaged in collective
bargaining with the Union but has continued in effect the terms and conditions of its
unit employees’ employment, including paying into the Union trust funds. On
February 2, the District Council filed unfair labor practice charges against
Respondent FSI. Neither the Union nor Respondent FSI pursued a grievance
concerning the dispute.
C. The Union’s Card Checks of the Unit Employees
of Each of the Non-FSI Respondents
By letter dated December 13, 2006, Gregory Smith (Mr. Smith), counsel for the non-
FSI Respondents notified Jack Mallory (Mr. Mallory) business representative of Local #159
that each of the non-FSI Respondents intended to terminate the Master Agreement on
January 31, the contractual termination date. Mr. Smith offered to bargain on behalf of the
non-FSI Respondents over the terms of an agreement to succeed the Master Agreement.
Thereafter, the non-FSI Respondents met in contract negotiations with Local #159 on
January 8, 16, 23, 29, and 30 without reaching agreement and agreed to meet on
January 31 at Local #159’s offices in Henderson, Nevada.
On January 31, at 2:45 p.m., the following individuals, inter alios, met in Local #159’s
conference room: John Smirk (Mr. Smirk), Business Manager and Secretary-Treasurer of
the District Council; Mr. Smith on behalf of the non-FSI Respondents, Jamie Picini of
Respondent Picini, Frank Kopcha of Respondent Custom, and Ken Freeman of Respondent
Freeman’s (the Card Check Meeting).9 Witnesses to the meeting supplied fundamentally
consistent accounts of what was said. The following account is an amalgam of credible
testimony: Mr. Smirk announced, essentially, that pursuant to Article 4 the Union wanted to
convert its 8(f) relationship with each of the non-FSI Respondents to a 9(a) relationship by
means of card checks to be conducted that day by an available third party from a local
church against the non-FSI Respondents’ December 2006 trust fund remittance reports (the
December Remittance Reports), which covered the period between late November through

9 Mr. Smith conducted similar bargaining with the Union on behalf of four other
companies, some representatives of which were also present at this meeting. Details
regarding those companies are immaterial to this matter.
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December 26, 2006.10 Mr. Smith objected on grounds that the December remittance reports
were not current lists of employees, that the non-FSI Respondents had not been given an
opportunity to participate in the selection of the third party, and that it was unethical for the
Union to pursue such a course of action at the eleventh hour.11 After 10-15 minutes of
heated discussion, Mr. Smith and representatives of the non-FSI Respondents signified their
intention of leaving the Card Check Meeting. Mr. Smirk said the Union was going to
continue with the card check in their absence and certify the employee units. Mr. Smith and
his clients walked out of the Card Check Meeting.
After the non-FSI Respondents left the Card Check Meeting, Maria Castillo Couch
(Ms. Couch), of whom no further evidence was provided, conducted a card check of the
non-FSI Respondents’ unit employees by comparing the signatures of union authorization
cards to the names of employees listed on the non-FSI Respondents’ respective December
Remittance Reports. The card check demonstrated that the Union had obtained
authorization cards from a majority of each of the non-FSI Respondents’ employees so
listed, and Ms. Couch prepared a card check certification for each of the non-FSI
Respondents’ employee units.12
On January 31 following the Card Check Meeting, by facsimile transmission and
certified mail, the District Council wrote to Mr. Smith, suggesting prospective bargaining
dates and sites and stating:
We are disappointed in your decision to not continue negotiations today. The
Union continued with the process of having a third party certify that the Union
is in fact the 9(a) collective bargaining representative of the employees of
your clients.13
Later the same day, by telecopy and letter dated January 31, Mr. Smith wrote to the
Union, summarizing the earlier events in pertinent part, as follows:
[At the Card Check Meeting], I informed you that we were not prepared for a
card check, that there had never been any discussion in our prior meeting
about a card check, and that we had not agreed to any third-party to perform

10 Remittance reports were not due until the 20th of each month and not delinquent until
the 30th; the December 2006 report was the most recent available to the Union.
11 On January 31, each of the non-FSI Respondents had payroll records and signature
exemplars covering unit employees available at their offices and had access to FAX
machines. The Union did not request any such documents, and neither Mr. Smith nor his
clients proffered any.
12 The Union did not transmit the certification to any of the non-FSI Respondents
because, according to Mr. Smirk, “I think that it was assumed that we had established 9(a),
and we proceeded as if we had. And [the non-FSI Respondents] had refused to participate
in the process, and I assumed that we would be here at some time, so if [they] wanted it,
[they]could have requested it.”
13 Although the letter inadvertently courtesy-copied clients of Mr. Smith other than the
non-FSI Respondents, the Union did not claim certification of representative for clients other
than the non-FSI Respondents.
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the card check…You claimed that the person you selected was a “third-party”
because he was from a local church but, of course, we had no way of
verifying the truth of what you said or whether this individual, even if from a
local church, was in fact unbiased.
I also stated that you did not have a current list of employees of each
employer. You stated you had trust fund remittance reports but the most
recent report you could possibly have would have been for the month of
December 2006…those reports are not a current listing of employees who
would be eligible to participate in the card check. Such a list should be a
current list as of today, or at lest within the last day or two.
…
My clients could not condone your unilateral attempt [to do a card check].
Accordingly, we left.
On February 1, the District Council filed unfair labor practice charges against
each of the non-FSI Respondents. Neither the Union nor any of the non-FSI
Respondents pursued a grievance concerning the dispute. The non-FSI
Respondents and the Union met in collective-bargaining for a successor agreement
on February 1, 2, 13, 22, 27, March 5, and April 17 but did not discuss the card
checks or certifications.
Based on later-provided payroll reports for each of the non-FSI Respondents,
the authorization card results as compared to names of employees employed as of
January 31 were as follows:
Respondent Custom: 24 of 41
Respondent FCS: 12 of 20
Respondent Freeman’s: 19 of 30
Respondent Picini: 43 of 48
V. Discussion
A. Legal Principles
Section 8(f) permits unions and employers in the construction industry to enter into
collective-bargaining agreements without the union having to establish that it has the
support of a majority of the employees in the covered unit.14 Section 8(f) creates an
exception to Section 9(a)'s general rule requiring an employee showing of majority support

14 Sec. 8(f) of the Act provides, in pertinent part: “It shall not be an unfair labor practice
under subsections (a) and (b) of this section for an employer engaged primarily in the
building and construction industry to make an agreement covering employees engaged (or
who, upon their employment, will be engaged) in the building and construction industry with
a labor organization of which building and construction employees are members … because
(1) the majority status of such labor organization has not been established under the
provisions of [Sec.] 9 prior to the making of such agreement.”
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for the union.15 An 8(f) collective-bargaining agreement is enforceable throughout its
term,16 and an employer violates Section 8(a)(5) and (1) of the Act by failing to adhere to, or
by repudiating an 8(f) agreement during its term.17
While an 8(f) relationship between an employer and a union may be terminated by
either party upon the expiration of their collective-bargaining agreement,18 a 9(a)
relationship (and the concomitant obligation to bargain) continues after contract expiration,
unless and until the union is shown to have lost majority support.19 Unlike a 9(a) contract,
an 8(f) contract does not bar a representation petition under Section 9.20
An 8(f) representative may achieve 9(a) status either through a Section 9
certification proceeding or “from voluntary recognition…where that recognition is based on a
clear showing of majority support among the unit employees, e.g., a valid card majority.” 21
A 9(a) relationship is established where "(1) the union requested recognition as the majority
or 9(a) representative of the unit employees; (2) the employer recognized the union as the
majority or 9(a) bargaining representative; and (3) the employer's recognition was based on
the union's having shown, or having offered to show, evidence of its majority support."22 In
order to establish voluntary recognition, there must be evidence that “the union
unequivocally demanded recognition as the employees' 9(a) representative” and that “the
employer unequivocally accepted it as such.”23 The Board has signified approval of
recognitional agreements that provide a method for determining majority status.24
For voluntary recognition, the majority showing need not adhere to formal standards.
See Saylor’s Inc., 338 NLRB 330 (2002) (9(a) relationship established by contract provision
stating the employer recognized the union as the Section 9(a) representative based on the
union’s having shown evidence of majority support); Hayman Elec., Inc., 314 NLRB 879
(1994) (authorization cards of employees whose names appeared on the union’s manning
board for the contractor shown to employer); Island Construction, 135 NLRB 13 (1962)

15 Sec. 9(a) states, in pertinent part: “Representatives designated or selected for the
purposes of collective bargaining by the majority of the employees in a unit appropriate for
such purposes, shall be the exclusive representatives of all the employees in such unit for
the purposes of collective bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment….”
16 John Deklewa & Sons, 282 NLRB 1375, FN 62 (1987), enfd. Sub nom. Iron Workers
Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988).
17 Horizon Group of New England, 347 NLRB No. 74, slip op. 21 (2006); See also
Madison Industries, Inc., 349 NLRB No. 114, 2007. The same principles apply to a
supplemental agreement in which an employer consents to be bound to a master
agreement. Cedar Valley Corp., 302 NLRB 823, 830 (1991).
18 Deklewa, supra at 1386-1387
19 Levitz Furniture Co., 333 NLRB 717 (2001).
20 Deklewa, supra at 1387.
21 Deklewa, supra at 1387, FN 53.
22 Staunton Fuel & Material, 335 NLRB 717, 720 (2001).
23 J&R Tile 291 NLRB 1034, 1036 (1988).
24 See Goodless Electric Co. Inc., 321 NLRB 64 (1996), rev. and remanded at 24 F.3d
322 (1st Cir. 1997), reaffd. 332 NLRB 1035 (2000), again rev. and remanded at 285 F.3d
102 (2002), complaint dismissed at 337 NLRB 1259 (2002); Hovey Electric, 328 NLRB 273
(1999).
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(employer’s voluntary recognition based on authorization-card majority checked against
payroll list)25; but see J&R Tile, supra at 1037 (evidence that a successor employer’s
contract provided for health, welfare, and pension benefits and that the predecessor
employer's president must have known his employees were union members “insufficient to
establish that the contract ... was entered into pursuant to Section 9(a) of the Act.”)
The Board has placed the burden of proving that a construction-industry relationship
falls under Section 9(a) rather than under 8(f) on the party making that assertion.26 The
Board’s general intent is to “apply existing eligibility and election rules to the extent
feasible.”27
In Board-conducted representation elections among the employees of employers
engaged in the building and construction industry, the construction industry employee
eligibility formula applies.28 The Daniel/Steiny eligibility formula applies to the voting
eligibility of all employees in the construction industry unless the involved parties stipulate
not to use it. Signet Testing Laboratories, Inc., 330 NLRB 1 (1999). The Board has also
utilized the Daniel/Steiny eligibility formula in card-majority Gissel29 cases. See Michael’s
Painting, Inc., 337 NLRB 860, 861 at FN 7 (2002).
B. Positions of the Parties
The Complaint alleges that Respondent FSI and each of the non-FSI Respondents
violated Sections 8(a)(1) and (5) of the Act by failing and refusing to honor the results of
third party card checks conducted by the Union on January 30 and January 31, respectively,
and by thereafter refusing to recognize the Union as the 9(a) exclusive collective-bargaining
representative of their respective employees.
The General Counsel’s position is that by agreeing to Article 4, Respondent FSI and
the non-FSI Respondents each assumed an express obligation to submit to the Union’s
demand for Section 9(a) card check recognition, and, upon demonstration of majority status,
to recognize the Union as the Section 9(a) representative of their respective unit employees.
The General Counsel argues (1) that Article 4 validly waived the Respondents’ rights to
insist on a Board-conducted election, (2) that following the card check performed in their
absences, the Respondents had no good-faith doubt of the Union’s majority status, and
(3) that each of the Respondents deliberately and unlawfully undermined the contractually
mandated recognition procedures.

25 Cited in Deklewa, supra at FN 53.
26 Donaldson Traditional Interiors, 345 NLRB No. 117 (2005); Deklewa, supra at 1385,
FN 41; see also Madison Industries, Inc., 349 NLRB No. 114, slip op. 4 (2007).
27 Deklewa, supra at fn. 42.
28 Daniel Construction Co., 133 NLRB 264 (1961), modified at 167 NLRB 1078 (1967),
reaffirmed and further modified in Steiny & Co., 308 NLRB 1323 (1992) provides that in
addition to unit employees employed during the payroll period immediately preceding the
date of the issuance of a regional director's Notice of Election, all employees in the unit who
have been employed for a total of 30 days or more within the period of 12 months, or who
have had some employment in that period and who have been employed 45 days or more
within the 24 months immediately preceding the eligibility date for the election, and who
have not been terminated for cause or quit voluntarily prior to the completion of the last job
for which they were employed, are eligible to vote.
29 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
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The Charging Party argues that Article 4 expressly provides that the Respondents
recognize the Union as the Section 9(a) majority representative of their respective
employees upon either the Union’s achieving majority status or upon a demand by the
Union to submit the majority status question to a third party card check. The Charging Party
contends that when Respondent FSI and the non-FSI Respondents declined to participate in
the Union’s majority status demonstrations conducted on January 30 and 31, respectively,
the Respondents unlawfully repudiated Article 4. The Union further argues that as the
evidence shows that majorities of the Respondents’ respective employees authorized the
Union to represent them, and as none of the Respondents have filed grievances over the
majority demonstration procedures utilized by the Union or established bias on the part of
the third-party card checkers, the Respondents must recognize the 9(a) status of the Union
pursuant to the provisions of Article 4.
Respondent FSI contends that the Union may not bind it to a 9(a) relationship
through a unilateral card check. Moreover, Respondent FSI contends the card check could
not be relied upon, as it was tainted by the following deficiencies: the Union unilaterally
designated Father Menchaca as the third party card checker; the card check did not apply
the Daniel/Steiny eligibility formula; the card checker did not compare signatures; and some
authorization cards were inappropriately counted for more than one employer.
The non-FSI Respondents argue that the Union has not established 9(a) status
because (1) the Union never made an unequivocal demand for recognition; (2) the non-FSI
Respondents never unequivocally granted 9(a) recognition; and (3) the card check
procedure was legally insufficient and lawfully rejected by the non-FSI Respondents.
No party contends that Article 4, which grants the Union an opportunity to make a
demand for 9(a) recognition upon demonstration of majority employee support, is other than
a lawful agreement establishing a method whereby the Union may obtain 9(a) status.
C. The Union’s Demand for 9(a) Recognition
Clearly, the Union demanded 9(a) recognition from each of the Respondents in the
course of announcing and implementing its January card checks under the aegis of Article
4. The question is whether, having failed to obtain any Respondent’s acquiescence in its
proposed implementation of Article 4, the Union was entitled unilaterally to declare itself the
9(a) representative of the Respondents’ respective unit employees based upon the card
checks conducted on January 30 and 31.
Pursuant to Article 4, the Respondents agreed that “if a majority of [their respective]
employees authorize[d] the Union to represent them in collective bargaining, the Employer
[would] recognize the Union as the NLRA Section 9(a) majority collective bargaining agent
for [their respective unit] employees.” The Respondents further agreed to submit, upon
demand by the Union, to a third party card check to determine the majority status of the
Union. Article 4 was silent as to the method of third party selection and/or the formula by
which employee eligibility was to be determined, reserving resolution of any disputes
concerning its terms to expedited arbitration under the terms of the Master Agreement.
The General Counsel and the Union maintain Article 4 requires each of the
Respondents to recognize the Union as the 9(a) representative of its respective employees
upon majority employee authorization and allows the Union to demand that each of the
Respondents submit to a third party employee card check, the results of which would
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determine whether each Respondent was thereafter bound to a 9(a) relationship with the
Union. I agree that such is a clear and unambiguous reading of Article 4. However, neither
the General Counsel nor the Charging Party has persuasively explained how Article 4
mandates the Union to devise the procedures by which majority authorization shall be
determined or by which the card check should be conducted. Further, neither the General
Counsel nor the Charging Party has explained why the Union’s choice of card-check
procedures should trump alternate views of appropriate measures, and finally, neither the
General Counsel nor the Charging Party has clarified why, when the parties disagreed on
what submitting to “a third party card check” comprehended, the grievance/arbitration of the
Master Agreement should not have been applied to.
Counsel for the General Counsel cites the Goodless series of cases as authority for
the validity of the Union’s January 30 and 31 card checks. The contractual clause contained
in the Goodless letter of assent is strikingly similar to Article 4, excepting Article 4’s provision
for a third party card check and dispute resolution by expedited arbitration. However, the
facts and issues of Goodless are dissimilar. In Goodless, the union representative
presented the employer with signed authorization cards from all the employer’s unit
employees, which the employer examined and independently verified.30 The employer in
Goodless never contended the union’s majority status should have been otherwise
demonstrated but attacked the reliability of the authorization cards, which issue the Board
addressed. Goodless cannot, therefore, constitute authority for the proposition that Article 4
mandated the Union’s formulation of card check procedures.
Counsel for the General Counsel argues that the Respondents’ refusals to accept
the card checks were in bad faith based, primarily, on her inference that “the Respondents
had absolutely no reason to doubt the Union’s majority status.” Counsel for the General
Counsel also argues that the Respondents’ objections to the card check were afterthoughts,
thereby demonstrating bad faith. It is true that prior to January 30 Respondent FSI voiced
no objection to the Union’s proposed card check procedures. Rather, Respondent FSI
consistently iterated its intention to terminate its agreement with the Union upon its
January 31 expiration and dodged the Union’s attempts to meet during the last two weeks of
the contract term, thereafter insisting that “an election was the fairest and the only way to
determine [what] the employees wanted.”31 Respondent FSI’s position that only an election
could appropriately determine its employees’ representational wishes may be ultimately
unavailing, but neither a weak argument nor an avoidance of the proposed card check
proves union animus.32 As for the non-FSI Respondents, on January 31 when the Union
effected its third party card checks of their respective employees, two areas of controversy—
the identity of the third party and the employee eligibility formula—remained unresolved.
Neither of the Respondents’ objections is so frivolous as to show animus. Indeed, the
Union’s proposed employee eligibility formula was a departure from the norm, inasmuch as,
absent a modifying stipulation, the Daniel/Steiny eligibility formula is the appropriate method
for determining voting eligibility of employees in the construction industry. Signet Testing

30 An employer may be bound by the results of card checks it has performed if the union
is led to believe that the purpose of the card check is for recognition, Research Management
Corp., 302 NLRB 627 (1991); Snow & Sons, 134 NLRB 709 (1961).
31 Since January 30, Respondent FSI has also argued that deficiencies in the Union’s
January 30 card check rendered the results unreliable.
32 Following the expiration of the Master Agreement, Respondent FSI has continued in
effect all its terms and conditions, including union trust fund contributions, which is
inconsistent with animus.
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Laboratories, Inc., supra. See also Michael’s Painting, Inc., supra. No other evidence of
animus on the part of the non-FSI Respondents has been advanced, and the non-FSI
Respondents have continued bargaining with the Union as the 8(f) representative of their
respective employees, which is inconsistent with animus.
In the absence of evidence of animus or intent to undermine the Union, the General
Counsel cannot prove bad faith merely by the Respondents’ refusal to accede to the Union’s
proposed third party card check procedures. Ultimately, the dispute between each of the
Respondents and the Union boils down to a question of how Article 4 should be interpreted.
Respondent FSI and the non-FSI Respondents advocated methods of determining majority
employee authorization that differed from those proposed by the Union, while the Union
insisted on utilizing the procedures it had devised. The Union’s procedures were not, as
argued by the Respondents, unfair or unreasonable, but they were not consensual, and
nothing in Article 4 put its imprimatur on any specific procedure. Accordingly, neither the
Respondents’ views nor the Union’s could be accorded contractual deference. “Where …
the dispute is solely one of contract interpretation, and there is no evidence of animus, bad
faith, or an intent to undermine the Union, [the Board] will not seek to determine which of
two equally plausible contract interpretations is correct.” Atwood & Morrill Co., 289 NLRB
794, 795 (1988).
Pursuant to the language of Article 4, when the Respondents opposed the Union’s
self-devised third party card check, the Union’s appropriate recourse was not to implement
what amounted to a default card check, reasonable and fair though its effectuation may
have been, but to address the disagreement through the grievance procedure. No party
availed itself of the grievance and arbitration procedure in the Master Agreement regarding
the third party card checks conducted on January 30 and January 31, respectively,33 and no
expedited arbitration was conducted. Until disagreements over the manner of determining
majority status were settled, either by mutual accord or by recourse to contractual dispute
resolution, the Union was not entitled to declare the card check valid and binding.34
The Charging Party argues that by refusing to participate in the January card checks,
the Respondents repudiated Article 4 and, concomitantly, their respective collective-
bargaining relationships with the Union.35 The Complaint fails to allege such conduct as
unlawful, limiting allegations of illegality to the Respondents’ refusals to honor the results of
the third party card check. While the Board may find and remedy a violation of the Act even
in the absence of a specific complaint allegation, the issue must be closely connected to the
subject matter of the complaint and have been fully and fairly litigated. Park N Fly, Inc., 349
NLRB No. 16 (2007); Gallup, Inc., 334 NLRB 366 (2001); Pergament United Sales, 296

33 In its January 25 letter to Respondent FSI, the Union referred to Respondent FSI’s
asserted refusal to comply with Article 4 as a “grievance,” but there is no evidence the Union
implemented the contractual grievance procedure.
34 The Charging Party argues that the Respondents were obliged to seek dispute
resolution under the terms of Article 4 if they opposed the Union’s card check procedures,
but the Board has placed the burden of proving that a construction-industry relationship falls
under Section 9(a) rather than under 8(f) on the party making that assertion. Therefore,
while either the Respondents or the Union could have turned to the grievance procedure,
the Charging Party may not fault the Respondents for not having done so.
35Counsel for the General Counsel makes a similar, though limited, argument in her
post-hearing brief, asserting that each of the Respondents deliberately and unlawfully
undermined the contractually mandated recognition procedures.
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NLRB 333, 334 (1989), Here, neither the narrow complaint allegations nor the General
Counsel’s presentation of evidence put the Respondents on notice that contract repudiation
was at issue. Accordingly, I do not address the question. See Sara Lee d/b/a International
Baking Company, 348 NLRB No. 76 (2006); Dilling Mechanical Contractors, Inc., 348 NLRB
No. 6, slip op. 9-10 (2006).36
In the absence of majority employee authorization achieved under the terms of
Article 4, the Respondents were not obligated to recognize the Union as the exclusive 9(a)
collective-bargaining representative of their respective employee units. Accordingly none of
the Respondents violated the Act by failing and refusing to honor the results of the third
party card checks conducted by the Union on January 30 and 31, respectively, and none of
the Respondents violated the Act by thereafter failing and refusing to recognize the Union as
the exclusive 9(a) collective-bargaining representative of their respective unit employees.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended37
ORDER
The complaint is dismissed.
Dated, Washington, D.C. September 5, 2007
Lana H. Parke
Administrative Law Judge

36 I also find it unnecessary to address Respondent FSI’s argument, in the
circumstances of this case, that Article 4 does not survive the expiration of the Master
Agreement.
37 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.