Building Contractors Association

National Labor Relations Board - Board Decisions

Aug 16, 2016

364 NLRB No. 74 (N.L.R.B. 2016)

364 NLRB No. 74
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Building Contractors Association, Inc. and The Dis-
trict Council of New York City and Vicinity of
The United Brotherhood of Carpenters and
Joiners of America, AFL–CIO Petitioner. Case
02–RC–154031
August 16, 2016
ORDER DENYING REVIEW
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MISCIMARRA
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Employer’s Request for Review of the Regional
Director’s Decision and Direction of Election and Sup-
plemental Decision and Direction of Election is denied,
as it raises no substantial issues warranting review.
The Petitioner seeks to represent a unit of carpenters
employed by construction employers in the New York
metropolitan area who have designated the Employer
Building Contractors Association (the Association) to
negotiate and enter into collective-bargaining agreements
on their behalf. In her Decision and Direction of Elec-
tion and Supplemental Decision and Direction of Elec-
tion (pertinent portions of which are attached as an ap-
pendix), the Regional Director found that the petitioned-
for multiemployer unit was appropriate; the Association
has requested review of this finding.1
Our dissenting colleague would grant review so that
the Board could examine whether the member-employers
of the Association had the requisite intent to engage in
multiemployer bargaining under Section 9(a) of the Act.
As fully explained by the Regional Director, however, a
multiemployer unit is appropriate here because the mem-
ber-employers of the Association have indicated their
“unequivocal intent” to participate and to be bound by
group bargaining. Arbor Construction Personnel, Inc.,
343 NLRB 257, 260 (2004) (citing Hunts Point Recy-
cling Corp., 301 NLRB 751, 752 (1991)).
The Association’s membership agreement and desig-
nation form allow member-employers to designate the
Association as their bargaining agent as to only certain
unions with whom the Association bargains, but they

1 In her Supplemental Decision and Direction of Election, the Re-
gional Director also determined that the Association had not established
that the Carpenter-Foreman and Carpenter-General Foreman are super-
visors within the meaning of Sec. 2(11). The Employer has also re-
quested review of this finding. We agree with the reasons stated by the
Regional Director and deny review.
require member-employers to be bound by the terms of
any collective-bargaining agreement entered into by the
Association with those designated unions.2 Further, the
2012 Notice of Proposed Amendments3 explains the dif-
ferences between 8(f) and 9(a) bargaining relationships
and discusses the possibility of a union seeking to con-
vert the relationship from 8(f) to 9(a) status through a
showing of majority status. The Association imposed no
conditions precedent to convert to 9(a) status, such as
consent from the member-employers. Finally, the parties
here have bargained on a multiemployer basis for more
than 30 years, and, as of the time the petition was filed,
were parties to an 8(f) agreement. As the Regional Di-
rector found, each member-employer indicated its une-
quivocal intent to adopt a contract resulting from joint
bargaining. See The Cement League, 02–RC–154016
(2016) (not included in bound volumes).4
Our dissenting colleague argues that the membership
documents (and the recent bargaining history) did not
serve to convert the 8(f) bargaining relationship into a
9(a) relationship and therefore did not indicate the mem-
bers’ consent to multiemployer bargaining. However,
the dissent conflates two distinct issues, the resolution of
which turns on different considerations: (1) whether
there is a multiemployer bargaining relationship, and (2)
whether, if such a relationship exists, it is governed by
Section 8(f) or Section 9(a). As to the first issue, the
evidence discussed above clearly shows that the mem-
ber-employers of the Association agreed to be bound by
multiemployer bargaining, and indeed have done so for
decades. As to the second issue, the evidence shows that
the membership agreement does not distinguish between

2 In 2012, the Association amended its by-laws to allow for this se-
lective designation. (Previously, member-employers of the Association
were bound by all agreements entered into by the Association.) The
new designation form lists 11 different unions, each with a yes/no
check-off space, thereby allowing a member-employer to indicate
which particular unions it was designating the Association to bargain
with on its behalf. The form expressly informs the member-employer
that a designation binds it to the terms of a collective-bargaining
agreement entered into by the Association with that union and authoriz-
es the Association to act on its behalf regarding grievances and other
contractual matters.
3 The amendments discussed in the Notice were adopted as pro-
posed.
4 As in this case, the petitioner in The Cement League sought an
election in a multiemployer unit it had represented in an 8(f) relation-
ship (at the time the petition was filed, however, the most recent 8(f)
agreement had expired). Relying on the language of the employer
bargaining association’s constitution and by-laws and the parties’ histo-
ry of multiemployer bargaining (under both Section 8(f) and 9(a)
agreements), the Regional Director found an unequivocal intent to
participate in and be bound by group bargaining (whether on an 8(f) or
9(a)) basis and accordingly directed an election in the multiemployer
unit. The Board denied the employer bargaining association’s request
for review.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8(f) and 9(a) agreements. Further, some employers in
the multiemployer association have 9(a) relationships
with designated unions, while the petitioned-for Associa-
tion employer-members had 8(f) relationships. Finally,
the membership agreement acknowledges that unions
seeking to convert a bargaining relationship from 8(f) to
9(a) could do so through a showing of majority status.
That is exactly what the Petitioner has sought to do here:
convert the relationship from 8(f) to 9(a) based on a
showing of majority support.
Our colleague’s reliance on 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), is similarly misplaced. Deklewa sets
out the requirements for converting an 8(f) relationship
to a 9(a) relationship based on an employer’s voluntary
recognition of a union’s majority support within the unit.
Here, the issue is not whether the Association may vol-
untarily recognize the Union; rather, the issue is whether
the members of the Association have clearly indicated
their intent to engage in multiemployer bargaining with
the Petitioner—whether on an 8(f) or 9(a) basis.5 The
separate issue of whether the Petitioner qualified as the
9(a) bargaining representative was determined by the
majority vote of the employees in an election.
Our colleague also suggests that under Deklewa, supra,
and Comtel Systems Technology, Inc., 305 NLRB 287,
289 (1991), when a union seeks to convert an 8(f) rela-
tionship to a 9(a) relationship through an election, the
employees should vote on an employer-by-employer
basis as to whether to establish a 9(a) multiemployer
bargaining relationship. As our colleague appears to
acknowledge, however, neither of these cases is directly
on point.6
Finally, we disagree with our colleague that the inclu-
sion of 16 member-employers who currently do not em-
ploy employees within the election unit is unwarranted.
The Board has long recognized the special status of the
construction industry within the representation process,

5 Contrary to our colleague’s assertion, we do not assume that a par-
ty’s intent to bargain on an 8(f) basis and its intent to bargain on a 9(a)
basis are “interchangeable.” As discussed, the Association’s member-
ship documents show that the member-employers authorized the Asso-
ciation to bargain on their behalf regardless of whether that bargaining
was on an 8(f) or 9(a) basis.
6 As noted above, Deklewa involved the conversion of an 8(f) rela-
tionship to a 9(a) relationship based on voluntary recognition. Alt-
hough, as our colleague observes, the Board in Deklewa expressed
concern about merging single-employer 8(f) units into a larger 9(a)
multiemployer without the employees’ consent, it also forthrightly
stated that “we do not imply that multiemployer associations and mul-
tiemployer bargaining are no longer appropriate in the construction
industry.” Id. at 1385 fn. 42. As for Comtel Systems, the Regional
Director correctly distinguished it on the facts.
especially regarding the experience of employees work-
ing for an employer on a project and then going to work
for another employer or employers on other projects.
Daniel Construction Co., Inc., 133 NLRB 264 (1961), as
modified in 167 NLRB 1078 (1967).7 The Regional Di-
rector’s inclusion of the 16 member-employers, who do
not currently employ employees in the unit, is consistent
with the general recognition that the employee comple-
ments of construction employers fluctuate. Those 16
member-employers designated the Association to bargain
on their behalf with the Petitioner, and there is no indica-
tion that any of them attempted to withdraw from the 8(f)
agreement despite their nonemployment of unit carpen-
ters.8 As the Regional Director noted, there is no indica-
tion that any of the 16 member-employers have perma-
nently ceased carpentry work or will not accept such
work in the future. Under these circumstances, we see
no reason to exclude these member-employers from the
unit.
In sum, the Association has raised no substantial issues
warranting review, and the Request for Review is accord-
ingly denied.
Dated, Washington, D.C. August 16, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting.
I would grant review of the Regional Director’s deci-
sion to direct an election in the petitioned-for multiem-
ployer unit for purposes of 9(a) representation. In my
view, the Building Contractors Association (Associa-
tion), a multiemployer association, raises substantial is-
sues warranting review regarding whether its members

7 The Steiny/Daniel formula determines employees’ voting eligibility
in a case like this one based on their recent employment with the unit
employers in the aggregate, not whether they are employed by any
particular employer in the period immediately prior to the direction of
election. Id.; Steiny & Co., 308 NLRB 1323 (1992).
8 With respect to 8(f) agreements, an employer who employs one or
fewer unit employees on a permanent basis is free to withdraw recogni-
tion, repudiate its contract, or unilaterally change terms and conditions
of employment without affording an opportunity to bargain. See Baker
Concrete Constr., Inc. v. Reinforced Concrete Contractors Ass’n, 820
F.3d 827 (6th Cir. 2016) (quoting Stack Electric, 290 NLRB 575, 755
(1988)).
BUILDING CONTRACTORS ASSOCIATION, INC. 3
had the requisite intent to engage in multiemployer bar-
gaining under Section 9(a) of the Act.
The Association and the District Council of New York
City and Vicinity of the United Brotherhood of Carpen-
ters and Joiners of America, AFL–CIO (Carpenters Un-
ion) have a long-standing history of multiemployer bar-
gaining for only Section 8(f) agreements. In 2012, the
Association sent its members several documents in con-
junction with proposed changes to the Association by-
laws. One of these documents allowed Association
members to authorize the Association to engage in mul-
tiemployer bargaining on its behalf. Another of these
documents outlined the difference between 8(f) and 9(a)
agreements and stated that “a union can convert an 8(f)
relationship and agreement to a 9(a) relationship and
agreement by demonstrating its majority status at any
time during the term of the agreement.” Contrary to the
implicit suggestion of my colleagues, no language in any
of these documents indicated that the purpose of these
documents was to effect such a conversion. In fact, dur-
ing the negotiation of the last two 8(f) agreements be-
tween the Carpenters Union and the Association in 2012
and 2015, the parties made proposals that would convert
the parties’ 8(f) agreement to a 9(a) agreement. None of
these proposals were adopted. On June 11, 2015, the
Carpenters Union filed a petition to represent the bar-
gaining unit currently covered by the parties’ 8(f) agree-
ment. The Regional Director directed an election among
all the bargaining unit employees at each of the Associa-
tion’s members. The results of the election do not reflect
whether the Carpenters Union has majority support
among the bargaining unit within any individual member
of the Association. In fact, 16 members of the Associa-
tion currently do not employ any bargaining unit em-
ployees.
In 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), the
Board explained the fundamental and significant distinc-
tions between 8(f) and 9(a) relationships and agreements.
The Board also explained that an 8(f) relationship could
become a 9(a) relationship where a construction industry
employer voluntarily recognized the union as a majority
representative and the union demonstrated majority sup-
port among unit employees. Id. at 1387, fn. 53; see also
Staunton Fuel & Material, Inc., 335 NLRB 717, 717
(2001); Golden West Electric, 307 NLRB 1494, 1495
(1992).
Neither the Association nor any of its members have
voluntarily recognized the Carpenters Union as a majori-
ty representative or demonstrated any intent whatsoever
to do so. While I agree with the Regional Director and
my colleagues that the Association’s members clearly
evidenced intent to engage in 8(f) multiemployer bar-
gaining with the Carpenters Union, there is virtually no
evidence that the members intended to engage in 9(a)
bargaining. Rather, the undisputed evidence shows that
the Association, on its members’ behalf, has on multiple
occasions rejected collective-bargaining language that
would allow for a 9(a) relationship to be formed.1 It
strains credulity to conclude that, in the face of these
multiple rejections of 9(a) bargaining and a 30-plus year
history of 8(f) bargaining, that mere references to 9(a)
bargaining in documents shared with members evidences
clear member intent to convert to 9(a) bargaining.2
Furthermore, I believe that directing this election in a
multiemployer unit does not adequately preserve em-
ployee free choice of a representative. In processing the
conversion of an 8(f) bargaining relationship to a 9(a)
bargaining relationship, “the appropriate unit normally
will be the single employer’s employees covered by the
agreement.” John Deklewa & Sons, above at 1377,
1385. Deklewa specifically rejected the application in
8(f) cases of the merger doctrine, in which employers
and unions may merge employer units into a multiem-
ployer unit, because the cost in terms of employee free
choice was too high. Id. at 1385, fn. 42. For these rea-
sons, Deklewa holds that “employees of a single employ-
er cannot be precluded from expressing their representa-
tional desires simply because their employer has joined a
multiemployer association.” Id. I believe that directing
this election contradicts the spirit, if not the letter, of this
holding. Cf. Comtel Systems Technology, Inc., 305
NLRB 287, 289 (1991) (a collective-bargaining agree-
ment “will not be binding as anything other than a sec-

1 The evidence showed that the Association’s longstanding relation-
ship with the Carpenters Union has been exclusively an 8(f) relation-
ship. Although the relevant documents in this case explained how a
conversion from an 8(f) to a 9(a) relationship might occur, these docu-
ments at no point signaled intent to engage in such a conversion. The
takeaway from my colleagues’ decision, therefore, is that the question
is no longer whether the employer intended to effect a conversion of an
8(f) relationship to a 9(a) relationship, but rather, whether an employer
affirmatively disavowed any intent of converting its relationship from
an 8(f) to a 9(a) relationship. However, even if “affirmative disavowal
of intent to convert” were the standard, that standard is met here by the
Association’s repeated rejection of proposals that would have converted
the 8(f) relationship to a 9(a) relationship.
2 My colleagues cite to The Cement League, 02–RC–154016 (2016)
(not included in bound volumes) for the proposition that an unequivocal
intent to be included in joint bargaining generally equates to an intent to
be included in Section 9(a) bargaining specifically. I dissented in The
Cement League for much the same reasons I dissent here, namely that a
multiemployer bargaining association’s longstanding 8(f) relationship
with the union evidences only an intent to engage in 8(f) bargaining,
and cannot, without more, evidence an intent to engage in 9(a) bargain-
ing.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion 8(f) agreement in the absence of a showing that a
majority of the employees in the employer’s work force
had manifested their support for the union before the
employer became bound to the agreement.”) (emphasis
added).
And I believe that the inclusion in this election of the
16 employers who employed no unit employees during
the eligibility period is particularly unwarranted. When
these employers eventually hire unit employees, those
employees will be subject to a 9(a) bargaining unit and
agreement even though no employees of those employers
ever had any opportunity to express their views concern-
ing representation. My colleagues thereby countenance
what amounts to a 9(a) prehire agreement as to these
employers and their employees. I believe such an
agreement is contrary to the express will of Congress,
which has authorized prehire agreements only pursuant
to Section 8(f). See generally Deklewa, above.
My colleagues assert that I improperly conflate wheth-
er a multiemployer bargaining relationship exists with
whether such a relationship is governed by Section 8(f)
or Section 9(a). Respectfully, I believe my colleagues’
decision today tends to ignore the key differences be-
tween 8(f) and 9(a) relationships entirely. As discussed
above, the documents upon which my colleagues base
their finding that the Association intended to engage in
multiemployer bargaining, do not provide a scintilla of
evidence that the Association intended to engage in 9(a)
bargaining with the Union. Thus, to reach this conclu-
sion, one must assume that intent to engage in 8(f) bar-
gaining and intent to engage in 9(a) bargaining are essen-
tially interchangeable; such an assumption necessarily
relies on there being no meaningful difference between
an 8(f) bargaining relationship and a 9(a) relationship. I
cannot agree with my colleagues that no such meaningful
difference exists. See King’s Fire Protection, Inc., 362
NLRB No. 129, slip op. at 3–4 (2015) (Member
Miscimarra, dissenting) (highlighting key differences
between 8(f) and 9(a) relationships).3
Furthermore, I would also grant review to consider
whether it is appropriate to include the classifications of
Carpenter Foreman and Carpenter General Foreman (to-
gether, “Foremen”) in the proposed unit. The Foremen
possess supervisory authority if they engage in any one

3 Indeed, explaining why it is appropriate, to bind employers without
employees to the results of an election for a 9(a) unit, my colleagues
rely on “the special status of the construction industry within the repre-
sentation process.” I agree with my colleagues that the Board has long
recognized this special status of construction industry employers; it is
why the Act recognizes 8(f) relationships. However, my colleagues
provide no precedent that 9(a) agreements are appropriate for construc-
tion industry employers with no employees. To the contrary, such 9(a)
prehire agreements are clearly inappropriate.
of the 12 different supervisory functions enumerated in
Section 2(11). The parties’ Section 8(f) collective-
bargaining agreement, in effect when the Carpenters Un-
ion petitioned for this election, explicitly stated that the
Foremen possess the authority to engage in at least two
supervisory functions, stating “[t]he General Foreman
and the Foreman shall be the agents of the Employer.
The right to hire and discharge employees, rests with the
General Foreman and/or Foreman who are authorized
representatives of the Employer.” Furthermore, the As-
sociation’s evidence that Foremen exercise supervisory
authority is uncontroverted, with the Regional Director
instead criticizing the evidence for being insufficiently
specific. As I have previously explained, the Board
should not disregard unrebutted evidence “merely be-
cause it could have been stronger, more detailed, or sup-
ported by more specific examples.” Buchanan Marine,
363 NLRB No. 58, slip op. at 9 (2015) (Member
Miscimarra, dissenting) (citations omitted). Thus, I
would grant review to consider the Foremen’s superviso-
ry status under the three common sense factors I set forth
in Buchannan Marine, above at slip op. 10, namely: (i)
the nature of employer’s operations; (ii) the work per-
formed by undisputed statutory employees; and (iii)
whether it is plausible to conclude that all supervisory
authority is vested in persons other than those whose
supervisory status is in dispute.
Dated, Washington, D.C. August 16, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
DECISION AND DIRECTION OF ELECTION
The District Council of New York City and Vicinity of the
United Brotherhood of Carpenters and Joiners of America,
AFL–CIO (the Petitioner) seeks an election in a multiemployer
unit consisting of all employees employed by member-
employers of the Building Contractors Association, Inc., (the
Association) who designated the Association to bargain on their
behalf with respect to the Petitioner. The Petitioner contends
that the multiemployer unit is an appropriate unit because it is
the historical unit represented by the Petitioner for more than
30 years.
The Association contends that the petitioned-for unit is not
appropriate because the member-employers comprising the
Association did not consent to bargain for a Section 9(a) con-
tract or to proceed to an election in a multiemployer bargaining
unit. Further, the Association submits that a multiemployer
unit is inappropriate because it would deprive the employees of
BUILDING CONTRACTORS ASSOCIATION, INC. 5
individual member-employers the opportunity to choose their
bargaining representative in single units.1 In addition, the As-
sociation argues that it has no knowledge of who its member-
employers employ and cannot force its member-employers to
provide a voter list of employees. Lastly, the Association as-
serts that two classifications within the petitioned-for unit, Car-
penter Foremen and Carpenter General Foremen, are statutory
supervisors and therefore, are ineligible to vote.
A hearing officer of the Board held a hearing in this matter
and the parties orally argued their respective positions prior to
the close of the hearing. As explained below, based on the
record and relevant Board law, I find that the petitioned-for unit
is an appropriate unit, and that the member-employers of the
Association who designated the Association to bargain on their
behalf consented to multiemployer bargaining covering the
multiemployer unit. Further, I conclude that the Association’s
contention that certain classifications be excluded need not be
litigated or resolved before the election is conducted because
the Association has not shown that the resolution of this issue
would significantly change the size or character of the unit.
I. BACKGROUND FACTS
A. The Association and its Member-Employers
The Association is a multi-employer construction trade asso-
ciation that consists of approximately 172 construction compa-
nies in the New York metropolitan area. One of the primary
purposes of the Association is the negotiation and administra-
tion of collective-bargaining agreements with approximately 13
building trades unions on behalf of its member-employers. In
addition, the Association provides management-labor relations
assistance, services and coordination to its members, including
collecting wage data from its members, providing health insur-
ance options, lobbying politicians, and keeping members in-
formed of industry developments.
Of the 13 unions that the Association has bargaining rela-
tionships with, the record reflects that three of them—Mason
Tenders District Council, General Building Laborers’ Local 6,
and Bricklayers Local 1—have attained Section 9(a) status. It
is undisputed that it has an 8(f) relationship with the remaining
10 unions, including the Petitioner.
In 2012, the Association amended its by-laws to alter the
way in which its member-employers authorize the Association
to enter into collective-bargaining agreements on their behalf.
Prior to the amendments, any contractor who joined the Asso-
ciation was bound to all of the agreements that the Association
negotiated. Under the 2012 amendments, contractors can be
member-employers of the Association, as long as, they desig-
nate the Association as their bargaining agent for at least one of
the unions with whom the Association has a collective bargain-
ing relationship. The amended by-laws make no reference to
9(a) or 8(1) relationships and agreements.
The Association sent three documents to its member-
employees concerning the amendments to the by-laws: a Notice

1 The Association conceded at the hearing that multiemployer bar-
gaining is permissible in the construction industry and that a unit of
employees engaged in carpentry work, absent supervisors, would be an
appropriate craft unit.
of Proposed Amendments, a Designation of Bargaining Rights
form, an updated Application for Membership form.
The Notice summarized the proposed amended by-laws and
outlined the differences between 9(a) and 8(f) agreements.
Although the Notice indicated that the Association has “mostly
8(f) agreements” and some 9(a) agreements, it does not limit
the Association’s bargaining authority based on the type of
agreement. In the section defining an 8(f) agreement, the No-
tice restated current Board law and provided that “a union can
convert an 8(f) relationship and agreement to a 9(a) relationship
and agreement by demonstrating its majority status at any time
during the term of the agreement.” There is no language else-
where in the Notice identifying any other conditions precedent
required to convert an 8(f) relationship and agreement to a 9(a)
relationship and agreement, such as consent from member-
employers or a showing of majority support at each individual
member-employer.
The Designation of Bargaining Rights form provides mem-
ber-employers the freedom to designate the Association to bar-
gain on behalf of the member-employers for one or more of the
unions. The form is titled “Designation of Building Contrac-
tors Association, Inc., As Collective Bargaining Representa-
tive” and states, “The undersigned contractor hereby designates
the Building Contractors Association (hereinafter “BCA”) as its
sole and exclusive bargaining representative with respect to the
following labor organization(s).” The form then listed 11 un-
ions, including the Petitioner, with a space to initial next to
either YES or NO for each union.2 At the bottom, it states:
This designation authorizes the BCA to negotiate and agree to
terms of collective bargaining agreements with each of the la-
bor organizations designated above, and for BCA to act on
your behalf with respect to grievances and other matters relat-
ed to such collective bargaining agreements, and to bind you
with respect to its actions on your behalf.
Such authorization will “remain in full force and effect as to
all designated unions” unless a member-employer provides
written notice of termination to the Association or revocation of
the designation with respect to any union not less than 180 days
prior to the expiration of a collective-bargaining agreement
between that union and the Association. Thus, member-
employers can update their Designation of Bargaining Rights
form and revoke bargaining authorization with respect to par-
ticular unions, provided such changes are timely made.3 Nota-
bly, the form does not differentiate between authorizing the
Association to negotiate Section 8(f) and 9(a) labor agreements.
The updated membership application is required for new
members, and it tracks the language from the Designation of
Bargaining Rights form. The application states that the mem-
ber-employer “will abide, be governed by, and conform to the

2 The form has been updated to include thirteen unions after the As-
sociation began a collective-bargaining relationship with two additional
unions.
3 Although the designation forms specifically require written notice
of revocation at least 180 days before the expiration of an agreement,
the Association has allowed its member-employers to revoke bargain-
ing authority verbally over the phone or through written notice up to a
month before expiration.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
By-Laws of the Association; and agrees that it will be bound by
the terms of all Association trade agreements it adopts and/or
for which it designates the Association as its collective-
bargaining representative for the duration of those agreements.”
Similar to the designation form, the membership application
does not distinguish between 8(f) and 9(a) agreements, or oth-
erwise limit the Association’s authority to bargain on their be-
half.
At the Association’s next general membership meeting in
December 2012, the amendments were adopted, as proposed.
All member-employers were then given the option to fill out a
Designation of Bargaining Rights form. Any member-employer
who did not fill out the new form continued to be bound by all
of the agreements that the Association negotiated.
In early 2013, the Association updated its Designation of
Bargaining Rights form and Application for Membership. The
Association now requires that all member-employers must
adopt the 9(a) agreements with the Mason Tenders District
Council and the General Building Laborers Local 66. The
member-employers remain free to designate the Association to
negotiate and agree to terms of collective-bargaining agree-
ments with the remaining 11 unions.
Finally, at a February 2015 Board of Directors meeting, the
Association changed the structure of its Labor Relations Com-
mittee. Currently, the Association has separate Labor Commit-
tees for each individual trade union with whom it negotiates.
Previously, the Association’s by-laws created only one Com-
mittee, comprised of a least three members, who would negoti-
ate collective-bargaining agreements with all of the unions.
Apart from the structure, the duties and authority of the com-
mittee remained unchanged. Presently, the Committees’ acts
and findings “with respect to any union shall be binding on all
Members of the Association who have designated the Associa-
tion as their representative with respect to that particular un-
ion.” Although the Committees’ decisions are subject to the
approval of the Association’s Board of Directors, individual
member-employers do not vote on the final agreement negoti-
ated by the Committees.
B. The Association and the Petitioner’s
Collective-Bargaining History
For more than 30 years, the Petitioner and the Association
have been signatories to successive prehire construction indus-
try agreements. The most recent collective-bargaining agree-
ment, effective by its terms from July 1, 2011, to June 30, 2015,
covered the wages, hours and conditions of employment for all
employees employed by the member-employers in the follow-
ing classifications: carpenter foreman, carpenter general fore-
man, journeyman, carpenter, journeymen carpenter, and jour-
neymen carpenter apprentices. On June 25, 2015, the parties
signed a memorandum of agreement that extended the agree-
ment until June 30, 2016.
Of the Association’s approximately 172 member-employers,
145 of them designated the Association to negotiate and agree
to a collective-bargaining agreement with the Petitioner in the
most recent negotiations. These member-employers either
specifically designated the Association through a designation
form, or continued to be bound by all of the agreements that the
Association negotiates, including one with the Petitioner.
The Petitioner is seeking to represent the classifications in
the contractual unit, employed by the 145 member-employers
that authorized the Association to bargain with the Petitioner on
their behalf.
Notwithstanding the authorization, the Association claims
that only 96 of 145 member-employers have actually employed
carpenters in the past 6 months. By analyzing 6 months of
benefit funds reports, the Association identified only 96 mem-
ber-employers who remitted benefit contributions on behalf of
their employees. A member-employer’s failure to remit dues
suggests that it did not employ carpenters during those 6
months. Thus, the Association asserts that 49 member-
employers should not be included if an election is directed.
Notably, no record evidence was adduced covering a longer
period, such as the past 2 years, even though such documents
appear to be readily within the Association’s possession. Addi-
tionally, the Association did not produce evidence demonstrat-
ing that those 49 member-employers have no plans to employ
carpenters at a future date.
With respect to hire, member-employers either use the Peti-
tioner’s hiring hall via an out-of-work list, or hire carpenters
directly. In some instances, member-employers may be able to
hire their complete work force for a project, with the exception
of a shop steward, without going through the Petitioner’s out-
of-work list. Although the Petitioner asserts that a majority of
the carpenters are hired on a project-by-project basis, it con-
cedes that some carpenters may stay with a single member-
employer for a longer period of time covering multiple projects.
As such, both parties agree that carpenters can be employed by
several member-employers over the course of a year. Neither
party introduced documentary evidence to establish the per-
centage of bargaining unit employees who work for a single
employer over an extended period versus employees who work
on a project-by-project basis for multiple employers.
It is undisputed that the collective-bargaining relationship
between the parties is governed by Section 8(f) of the Act. No
evidence was adduced at the hearing, and the parties do not
contend, that the Petitioner has demonstrated majority support
among the employees. Indeed, the purpose of the petition is to
demonstrate majority support among the employees in the unit
through a Board election.
During the parties’ last two recent negotiations for successor
agreements, both parties made proposals that would convert
their 8(f) relationship and agreement to a 9(a) relationship and
agreement. The Petitioner proffered evidence of the Associa-
tion’s proposals to demonstrate that the Association has the
ability to convert the parties’ relationship to 9(a) without any
additional consent of its member-employers. On both June 11,
2012, and on June 25, 2015, the Association made proposals
that would convert the parties’ agreement to 9(a) if the Peti-
tioner agreed to the rest of the Association’s proposals. In the
2015 proposal, the Association added language that would al-
low the successor agreement between the Association and the
Petitioner to convert a 9(a) agreement if the Petitioner was able
to demonstrate that it “represents a majority of the employees
in the unit covered by this Agreement.” It did not require the
BUILDING CONTRACTORS ASSOCIATION, INC. 7
Petitioner to show it represents a majority of employees at each
of the 145 member-employers that agreed to be bound by the
Association’s bargaining. The Petitioner ultimately did not
accept either proposal. Had the parties reached a full agree-
ment, the Association asserts that final approval by the Board
of Directors is still required. Because no evidence was adduced
regarding the frequency or circumstances wherein the Board
has, in fact, withheld approval, the bargaining proposals sug-
gest that the parties believed that they had the ability to create a
9(a) relationship by mutual agreement.
II. LEGAL PRINCIPLES AND ANAYLSIS
A. Multi-employer Bargaining in the Construction Industry.
In determining an appropriate bargaining unit, the Board
seeks to fulfill the Act’s objectives of ensuring employee self-
determination, promoting freedom of choice in collective bar-
gaining, and advancing industrial peace and stability. See Na-
tional Labor Relations Act, 29 U.S.C. Section 151 (Section 1 of
the Act declares it to be the “policy of the United States” to
encourage “the exercise by workers of full freedom of associa-
tion, self-organization, and designation of representatives of
their own choosing”). The Supreme Court stated, “Congress
attached no conditions whatsoever to their freedom of choice in
this respect. Their own best judgment, not that of someone
else, was to be their guide.” Hill v. Florida, 325 U.S. 538, 541
(1945).
The Board has held that employee free choice is equally im-
portant in the Section 8(f) construction industry context as well.
John Deklewa & Sons, 282 NLRB 1375, 1377 (1987), enfd. sub
nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir.
1988), cert. denied 488 U.S. 889 (1988). Under Section 8(f) of
the Act, parties can bargain without any showing of majority
support or input amongst employees in the construction indus-
try. The Board in Deklewa sought to address this exception and
more closely align Section 8(f) with the “fundamental statutory
objectives of employee free choice and labor stability.” Id. at
1380. The Board stated “Congress sought to assure that the
rights and privileges accorded employers and unions in the
body of Section 8(f) would not operate to thwart or undermine
construction industry employees’ representational desires.” Id.
at 1381. To not allow construction industry employees the
ability to freely select their representative would effectively
treat them as second-class citizens under the Act, where non-
construction industry employees will not have a representative
thrust upon them without a showing of majority support.
Finally, although the Board stated a single employer unit
would normally be the appropriate unit in the construction in-
dustry, the Board’s holding was limited to announcing new
rules to apply to 8(f) agreements; it did not jettison its long
standing procedure that, in determining the appropriate unit
under Section 9(b), it will first examine the petitioned-for unit.
See Barron Heating & Air Conditioning, Inc., 343 NLRB 450,
453 (2004); Specialty Healthcare & Rehabilitation Center of
Mobile, 357 NLRB 934, 945 (2011) (if petitioned-for unit “is
an appropriate unit, the Board’s inquiry ends”), enfd. sub nom
Kindred Nursing Centers East LLC v. NLRB, 727 F.3d 552 (6th
Cir. 2013). Thus, I will examine whether the petitioned-for unit
is appropriate, and if it is an appropriate unit, an election will
be ordered in that unit.
B. The 145 Member-employers Intended to be Bound by
Multiemployer Bargaining with the Petitioner
A multiemployer bargaining unit is appropriate where “the
employers involved have evidenced a clear intent to participate
in multiemployer bargaining and to be bound by the actions of
the bargaining agent.” Arbor Construction Personnel, Inc., 343
NLRB 257, 257 (2004) quoting citing Hunts Point Recycling
Corp., 301 NLRB 751, 752 (1991). Thus, “the Board requires
evidence of an unequivocal intent to be bound by group action
manifested by either participation in the group bargaining or
delegation of authority to another to engage in such bargain-
ing.” Arbor Construction Personnel, 343 NLRB at 258. See
also Sands Point Nursing Home, 319 NLRB 390, 390 (1995)
(“a party urging a multi-employer unit must demonstrate a con-
trolling history of bargaining on a multi-employer basis and an
unequivocal intent by the employer to participate and be bound
by the results of group bargaining”).
Here, 145 member-employers of the Association have
demonstrated an intent to participate and be bound by group or
joint bargaining with the Petitioner. Most importantly, a large
number of those member-employers signed a Designation of
Bargaining Rights form that states “the designation authorizes
the BCA to negotiate and agree to terms of collective-
bargaining agreements with each of the labor organizations
designated above and to bind you with respect to its actions on
your behalf.”4 Notably, the designation forms, along with all
the other membership materials including the application
forms, do not make any distinction or limit the Association’s
authority based on whether the contract is an 8(f) and 9(a)
agreement. Similarly, under the Association’s by-laws, the
Labor Relations Committee is authorized to act on behalf of the
member-employers for all dealings with the unions selected via
the designation forms and does not differentiate between 8(1)
and 9(a) agreements.
Additionally, there is no evidence that the three alleged 9(a)
agreements are negotiated pursuant to some other authorization
by the member-employers. The same designation form is used
for the unions that have 8(f) agreements with the Association.
Thus, contrary to the Association’s claim, neither the designa-
tion form nor the Association’s past practice provides a basis
for limiting its authority to negotiate agreements with the Peti-
tioner on behalf of its member-employers on an 8(f) basis.
Moreover, evidence of intent to be bound to the multiemployer
agreement is also established because the member-employers
are not allowed to either approve or reject the final negotiated
agreement between the Association and the Petitioner.
Finally, the parties have bargained on a multiemployer basis
for a “significant period of time.” Central Transport, Inc., 328
NLRB 407, 408 (1999) (12 years of multiemployer bargaining)
Here, the multiemployer relationship between the Petitioner
and the Association has proceeded for more than 30 years, and

4 The remaining member-employers are bound pursuant to their fail-
ure to fill out a Designation of Bargaining Rights form because any
member-employer who did not fill out the form remained bound to all
the agreements that the Association negotiates.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
quite possibly much longer. Based on the lengthy history, it is
evident that the member-employers have demonstrated an in-
tent to continually participate in group bargaining.
Based on the above, the Association’s assertion that its 145
member-employers only authorized the Association to negoti-
ate 8(f) agreements, and not 9(a) agreements, with the Petition-
er is unfounded. The Association claims that since it identified
in its Notice of Proposed Amendments to By-laws that its
agreement with the Petitioner was an 8(f) agreement, its mem-
ber-employers were only authorizing the Association to bargain
an 8(f) agreement with the Petitioner; they did not authorize the
Association to enter into a 9(a) relationship or agreement with
the Petitioner when they executed the Designation of Bargain-
ing Rights forms. I agree that Association identified that its
agreement with the Petitioner was an 8(f) agreement in its No-
tice. In my view, however, the Association merely informed its
member-employers that there has never been a showing of ma-
jority support among the employees represented by the Peti-
tioner that would convert the agreement to a 9(a) agreement.
Thus, when a member-employer initialed next to YES for a
union that had an 8(f) relationship and agreement on its Desig-
nation of Bargaining Rights form, it simply acknowledged that
the particular union had not demonstrated majority status.
The member-employers cannot limit employee free choice
by initialing YES next to the name of a union that currently has
an 8(f) agreement. It is for the employees, not the member-
employers or the Association, to decide the nature of relation-
ship between the Petitioner and the Association. By the Asso-
ciation’s own admission, in its Notice, the Association specifi-
cally notified its member-employers that “a union can convert
an 8(f) relationship and agreement to a 9(a) relationship and
agreement by demonstrating its majority status at any time
during the term of the agreement.” Every member-employer
was aware of this language and still agreed to adopt the pro-
posed amendments. There is no evidence that member-
employers objected to this language. Thus, according to a doc-
ument that every member-employer has in its possession and
implicitly agreed to, the only barrier in converting an 8(f) rela-
tionship and agreement to a 9(a) relationship and agreement, is
a showing of majority support by a union. That is the only
conversion condition that the Association notified its member-
employers of—it did not state that its member-employers
would have to consent to allow the union to convert the rela-
tionship.
Here, the Petitioner seeks to establish a 9(a) relationship
through a secret ballot vote conducted through a Board elec-
tion: While the Association claims that its member-employers
have the choice of whether to allow an 8(f) agreement to be-
come a 9(a) relationship, its view is contradicted by its own
documents and Board law.
Lastly, the Association’s reliance on Comtel Systems Tech-
nology, 305 NLRB 287 (1991), is misplaced. The Association
claims that Comtel holds that a union must demonstrate majori-
ty support at every individual employer within a multiemployer
unit. However, I find that Comtel is limited to its facts and does
not have the broader meaning ascribed to it by the Association.
In that case, there was a 9(a) relationship between a multiem-
ployer association and a union in the construction industry.
The Board held that when a new employer joins an existing
multiemployer association that has a 9(a) relationship with a
union, that employer will only have an 8(f) relationship with
the union, until the union establishes its majority status among
the new employer’s bargaining unit employees. Id. at 291. The
Board in Comtel attempted to ensure that employees of an em-
ployer, who had never bargained on a multiemployer basis,
would have a vote in whether to join a multiemployer unit.
Those facts are completely inapposite to the instant case. Here,
there is no risk that the employees would not get to choose
whether they want to be represented by the Petitioner in a mul-
tiemployer unit. This is the very question on the ballot that the
employees will decide.
C. The Petitioned-for Unit is an Appropriate Unit
The petitioned-for unit is a presumptively appropriate unit.
In analyzing the language of Section 9(b), the Board has held
that bargaining units consisting of “all employees in a particular
craft” are “presumptively appropriate.” Specialty Healthcare,
357 NLRB 934, 940 and fn. 16. A craft unit consists of a dis-
tinct and homogeneous group of skilled journeymen craftsmen
who, together with helpers or apprentices, are primarily en-
gaged in the performance of tasks which require the use of
substantial “craft” skills. MGM Mirage, 338 NLRB 529, 532
(2002); Reynolds Electrical & Engineering, 133 NLRB 113
(1961). Here, the petitioned-for unit is a craft-wide unit con-
sisting of carpenters, including journeyman and apprentices.
Moreover, the Board’s traditional deference to bargaining
history to determine unit scope is applicable in the construction
industry. See P.J. Dick Contracting, 290 NLRB 150, 151
(1988) (8(f) bargaining history was significant in determining
appropriateness of unit in construction industry). See also Alley
Drywall, 333 NLRB 1005, 1007 (2001) (history of collective
bargaining under 8(f) is a one factor in determining scope of
unit for 9(a)); Crittenton Hospital, 328 NLRB 879, 880 (1999)
(Board accords great deference to collective-bargaining histo-
ry); Great Atlantic & Pacific Tea Co., 153 NLRB 1549 (1965)
(same); West Lawrence Care Center, 305 NLRB 212, 217 (“the
longer the history of bargaining in a broader unit, the greater
the weight of that history in the balance”).
Here, the parties have bargained on a craft-wide multiem-
ployer basis for at least 30 years. The Association has provided
no justification for disturbing the long-established stable bar-
gaining relationship, nor has it provided any evidence to sug-
gest that the historical multiemployer unit is not an appropriate
unit or repugnant to Board policy.5 As the parties chose to
bargain in this manner, there is no reason for the Board to dis-
turb it.
Contrary to the Association’s claim, eligible employees of
every member-employer will cast their individual vote to de-
termine whether the Petitioner will be their representative for
the petitioned-for unit. Because every employee will have an
opportunity to vote in the historical unit, the Act’s objectives
are secured by promoting employee free choice while also de-

5 Although the Association asserts that Carpenter Foreman and Car-
penter General Foreman classifications should be excluded from the
unit, it agreed that a craft unit is appropriate.
BUILDING CONTRACTORS ASSOCIATION, INC. 9
ferring to the stability of labor relations between Petitioner and
the Association. Moreover, such a procedure adheres to the
well-established voting procedure ordinarily used in multiem-
ployer units.
Additionally, the possibility that the Petitioner can become
the exclusive bargaining representative of a particular employ-
er’s employees even though a majority of them may ultimately
vote against representation, is true of all multiemployer elec-
tions. Yet, elections in multiemployer units have a long history
of being appropriate. Further, such a result is not significant to
the current situation because of the nature of the construction
industry, where there is no stable work force among the em-
ployers and employees often work for multiple employers a
year.
As the Association member-employers are engaged in the
construction industry and the record reflects that the number of
unit employees varies from time to time, the eligibility of voters
will be determined by the formula set forth in Daniel Construc-
tion Co., 133 NLRB 264 (1961) and Steiny & Co., 308 NLRB
1323 (1992). See Signet Testing Laboratories, Inc., 330 NLRB
1 (1999) (Daniel-Steiny eligibility formula applies to all con-
struction industry employers unless the parties expressly stipu-
late not to use it). Because there is evidence that employees
often work for multiple member-employers, if employees do
not meet the eligibility formula for any one employer, the eligi-
bility formula should be applied using their aggregate employ-
ment with all the 145 member-employers. If eligibility is not
calculated in this aggregated way, there is a great risk of disen-
franchising individuals who would otherwise be eligible by
prohibiting them to vote. To hold otherwise would be to deny
employees their fundamental right to choose their collective-
bargaining representative. Indeed, applying this formula in a
multiemployer wide unit ensures that all eligible employees are
able to vote.
Regarding the Association claims that the approximately 49
member-employers have not employed any employees who
would be in the petitioned-for unit in the last 6 months, because
projects continually begin and end in the construction industry,
the Board is reluctant to dismiss a petition unless there is evi-
dence of an almost complete cessation of an employer’s con-
struction work in the foreseeable future. See e.g., Fish Engi-
neering & Construction Partners Ltd, 308 NLRB 836, 836
(1992) (Board directed election where employer’s current pro-
jects were expected to finish shortly after the hearing and the
employer had no definite work lined up but had submitted a bid
for future work); Brown & Root, Inc., 314 NLRB 19, 28 (1994)
(Board directed election where despite employer’s claim that
major construction work would be completed shortly, it contin-
ued to perform minor construction work and there was no evi-
dence the employer would not continue to seek major construc-
tion work). Compare, Davey McKee Corp., 308 NLRB 839,
840 (1992) (Board dismissed petition where employer’s entire
operation in the geographical area would cease within a month
of the hearing, all employees would be terminated, and the
employer had no other jobs underway or bid on in the area);
M.B. Kahn Construction Co., 210 NLRB 1050, 1050 (1974)
(Board dismissed petition where contraction of petitioned-for
unit was imminent due to the near completion of a project and a
showing that the employer did not have additional work in the
same geographic area).
Here, the Association has not produced any evidence to ade-
quately demonstrate that the 49 member-employers have defi-
nite plans to not employ carpenters in the petitioned-for unit in
the future or that any of its member-employers were getting out
of the construction industry in its entirety. Thus, given the
nature of the construction industry and the lack of clear evi-
dence that any member-employers will cease operations or stop
employing carpenters, those member-employers should be part
of the election. Further, because the Association only looked
back 6 months and not 24 months as required by the Daniel
formula, it is possible that those employers will have employ-
ees who should be included in the petitioned-for unit.
Lastly, the Association also claims that if an election is di-
rected, it would be unable to supply a voter list because it does
not employ the petitioned-for employees, and it would be diffi-
cult, if not impossible, to have its member-employers provide it
with voter lists. That is not a sufficient basis to not direct an
election. The Association adduced no evidence of hardship, or
even that the Association attempted to obtain the required voter
lists from its member-employers’ employees. By the Associa-
tion’s own admission, there is regular communication between
the Association and its member-employers, including member-
ship meetings, mailings, including notices about important
issues such as ‘by-law amendments, and collection of wage
data. Thus, the Association has not shown that it will be unable
to substantially comply with the requirement to provide a voter
list. I do, however, recognize that obtaining, coordinating, and
compiling lists from 145 member-employers may take slightly
longer which is why I am granting additional time for compli-
ance in transmitting the voter lists to the Petitioner and the Re-
gion.
With respect to the eligibility issue raised regarding the Car-
penter Foreman and Carpenter General Foreman classifications,
I conclude that the evidence does not establish that their inclu-
sion significantly changes the size or character of the unit. The
parties’ most recent agreement states that “When four (4) or
more Carpenters are employed, one (1) shall be the Foreman”
and “When five (5) or more Carpenter Foreman are employed,
there will be one (1) General Foreman.” The Petitioner con-
tends that the classifications amount to “a handful of individu-
als within a unit of thousands,” while the Association claims
that the number is much higher and could be “as many as a
quarter of the unit of thousands of employees.” The Associa-
tion was unable to quantify the exact percentage or number of
unit employees within these two classifications. I understand
that the peculiar facts presented in the case, combined with the
aggregate Daniel formula calculation, make it difficult to de-
termine an exact percentage, but the Association failed to even
approximate a percentage, which it could have done by supply-
ing a voter list that identified employees employed in those
classifications. Based on the contract language, at most, 25
percent of the unit are allegedly supervisory Carpenter Fore-
men, and the percentage of General Foreman is even less.
Moreover, if there are more than four carpenters on a given job,
the percentage drops even further. Absent voter lists or any
other evidence of an accurate percentage, it is appropriate to
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
have them vote subject to challenge. Accordingly, I shall per-
mit the Carpenter Foreman and Carpenter General Foreman
classifications to vote, in the election, subject to challenge.
SUPPLEMENTAL DECISION AND DIRECTION
OF ELECTION
Based on a petition filed June 11, 20151 by the District
Council of New York City and Vicinity of the United Brother-
hood of Carpenters and Joiners of America, AFL–CIO (the
Petitioner), a hearing was held in the above-captioned matter
before a hearing officer of the National Labor Relations Board
(Board). On July 30, a Decision and Direction of Election is-
sued and found that the petitioned-for, historical, multiemploy-
er unit was appropriate. Further, the issue regarding whether
the Carpenter Foreman and Carpenter General Foreman classi-
fications are included in, or excluded from, the bargaining unit
was deferred, so that these classifications were permitted to
vote subject to challenge.
As required by Section 102.67 (1) of the Board’s Rules and
Regulations (the Board’s Rules), the Building Contractors As-
sociation, Inc. (the Association) was required to provide a voter
list and a list of those individuals permitted to vote subject to
challenge. On August 12, the Association asserted that it was
unable to reliably and timely prepare an accurate voter list and
suggested that the Petitioner was in better position to produce a
voter list based on Fund records. The Petitioner subsequently
supplied a voter list and ballots were sent out to individuals on
the Petitioner’s voter list. However, the Association subse-
quently refused to waive any objections to the content of the
voter list prepared by the Petitioner, and neither party produced
a list of challenged voters in the Carpenter Foreman and Car-
penter General Foreman classifications. As a result, the ballots
were impounded and the count was indefinitely postponed.
On October 9, an Order Reopening the Record issued, in
part, for the purpose of providing the Association with an op-
portunity to use the Board’s subpoena power to obtain records
that would provide a basis for a voter list.
Further, in its post-hearing submission, the Petitioner assert-
ed that the carpenters in the disputed supervisory classifications
rotated through the foreman position with a frequency that po-
tentially affected a sizable portion of the unit. Accordingly, the
record was also reopened to permit the Association to adduce
evidence regarding whether the challenged classifications pos-
sess supervisory authority within the meaning of Section 2(11)
of the Act.
A hearing officer of the Board held a hearing in this limited
manner and the parties orally argued their respective positions
prior to the close of the hearing. As explained more fully be-
low, the Association has provided a voter list and challenge
voter list so that the election may proceed in an orderly manner.
With respect to the eligibility issue, based on the record and
relevant Board law, I find that the Association failed to meet its
burden to demonstrate that the individuals in the Carpenter
Foreman and Carpenter General Foreman classifications are
supervisors within the meaning of Section 2(11) of the Act.

1 All dates herein are 2015.
Therefore, those classifications are included in the bargaining
unit and are eligible to vote.
I. THE VOTER LIST
The Association produced a voter list that contains approxi-
mately 2,426 names, in accordance with Section 102.67(1) of
the Board’s Rules and Regulations (voter list). Accordingly, an
additional 40 individuals will receive mail ballots and their
eligibility to vote is not contested.2
Further, the Association produced a challenged voter list
containing approximately 453 names that it contends are Car-
penter Foreman or General Foreman. As a result, an additional
58 individuals will receive mail ballots. The Association re-
tains the right to challenge the eligibility of all these individuals
on the basis of supervisory status to preserve its rights on ap-
peal.
II. ELIGIBILITY OF CARPENTER FOREMAN AND CARPENTER
GENERAL FOREMAN CLASSIFICATIONS
The supervisory status of the approximate 453 individuals in
the Carpenter Foreman and Carpenter General Foreman classi-
fications constitutes the sole remaining issue in this matter.
The Association asserts that the individuals in the foreman
classifications are statutory supervisors within the meaning of
Section 2(11) of the Act and that, accordingly, they should be
excluded from the bargaining unit. The Association relies on
article VI of the parties’ collective-bargaining agreement that
specifically states that the Carpenter Foreman and Carpenter
General Foreman classifications are agents of the Association’s
member-employers that have the authority to hire and discharge
employees. The Association also points to a wage differential
that the classifications have over the other employee classifica-
tions. In addition, two current Association officials testified
and claimed that the Carpenter Foreman and Carpenter General
Foreman classifications are the most important people on the
jobsite for a contractor because they are in control of the jobsite
carpentry by assigning employees, supervising work, and en-
gaging in almost every other indicia of supervisory status.
The Petitioner, on the other hand, asserts that neither position
is supervisory as defined by the Act and therefore, should be
included in the appropriate unit, as set forth in the prior DDE.
Specifically, the Petitioner maintains that the individuals in
those classifications do not exercise supervisory authority, do
not exercise independent judgment in connection with the du-
ties that they perform, and that they are not held accountable
for directing work. Further, the Petitioner contends that their
title and the contract language are insufficient to satisfy the
Association’s burden.
For the reasons explained more fully below, I conclude that
the Association has failed to meet its burden to demonstrate
that the individuals in the Carpenter Foreman and Carpenter

2 The Association contends that 289 individuals who have received
mail ballots should not be included in the unit because they do not
satisfy the voter eligibility formula. Accordingly, those ballots will be
challenged by the Board as “not on the list.” In the event these ballots
are determinative, the Petitioner has the burden to show that these
individuals satisfy the voting formula in a postelection hearing.
BUILDING CONTRACTORS ASSOCIATION, INC. 11
General Foreman classifications are supervisors within the
meaning of Section 2(11) of the Act.
i. Background
As detailed in the prior Decision and Direction of Election,
the Association is a multiemployer construction trade associa-
tion that consists of approximately 172 construction companies
in the New York metropolitan area. Of those 172 member-
employers, 145 of them authorized the Association to negotiate
and enter into collective-bargaining agreements with the Peti-
tioner.
The Association and the Petitioner have had a long-term col-
lective-bargaining relationship for more than 30 years and have
been signatories to successive prehire construction industry
agreements. The most recent collective-bargaining agreement,
effective by its terms from July 1, 2011, to June 30, 2015, cov-
ered the wages, hours and conditions of employment for all
employees employed by the member-employers in the follow-
ing classifications: Carpenter Foreman, Carpenter General
Foreman, Journeyman, Carpenter, Journeymen Carpenter, and
Journeymen Carpenter Apprentices. On June 25, 2015, the
parties signed a Memorandum of Agreement that extended the
agreement until June 30, 2016. The parties’ agreement includes
Carpenter Foremen and Carpenter General Foremen in the bar-
gaining unit and it governs their terms and conditions of em-
ployment.
Article VI of the parties’ agreement states that “[t]he General
Foreman and Foreman shall be the agents of the Employer.
The right to hire and discharge employees rests with the Gen-
eral Foreman and/or Foreman who are the authorized repre-
sentatives of the Employer.” Additionally, Carpenter Foremen
receive a $3- an-hour wage differential and Carpenter General
Foremen receive a $6-an-hour wage differential from the jour-
neymen. Fringe benefits and fund contribution rates are the
same for all carpenter classifications. The parties’ agreement
also states, “[w]hen four (4) or more Carpenters are employed,
one (1) shall be the Foreman” and “[w]hen five (5) or more
Carpenter Foreman are employed, there will be one (1) General
Foreman.” If there is a Carpenter General Foreman on a
jobsite, he oversees Carpenter Foremen. Notably, there is no
other record evidence about the responsibilities of a Carpenter
General Foreman.
The Association’s contractor member-employers are en-
gaged in construction projects in the New York metropolitan
area. The record demonstrates that each contractor maintains a
primary or front office in addition to whatever labor it employs
on a construction jobsite. The contractor employs a project
manager and project supervisors who oversee the jobsites. Ad-
ditionally, there are weekly meetings on the jobsite where the
various trades coordinate their schedules and discuss issues that
may arise. Project managers run the meetings and make sure
all the building trades are on schedule. Foremen for all the
building trades report to the project managers and project su-
pervisors and attend the weekly meetings. According to the
Association, the contractor hires and designates all the foremen
who typically work for the same contactor and move from job
to job with that contractor.
The Association presented two witnesses: Assistant Manag-
ing Director John O’Hare and Director of Member Services
Craig Noller.
O’Hare testified that he has worked for the Association for
the past 17 years. O’Hare helps manage the day-to-day func-
tions of the Association and negotiates, administers and inter-
prets approximately 14 different collective-bargaining agree-
ments on behalf of the Association’s member-employers. As
part of his duties, O’Hare visits jobsites several times a week.
Prior to his employment with the Association, he worked for
a general contractor, Walter T. Murphy from 1985 to 1992, as a
laborer, and then as a project manager and estimator. He also
was a project manager and estimator for Norlander Contracting
Corporation, a carpentry drywall contractor from 1992 to about
1998.
Noller testified that he has worked at the Association since
2014. As the director of member services, Noller is the Associ-
ation’s liaison to its members and attempts to resolve any issues
that arise at a jobsite. Additionally, Noller serves as the Asso-
ciation’s safety director and is responsible to alert all contrac-
tors of safety issues and general safety awareness. Noller ad-
mitted that he has no role in granting authority to Carpenter
Foremen or Carpenter General Foremen on the jobsites.
He also previously worked in the construction industry. He
worked at Structure Tone Incorporated from 1984 until 2014.
He started as a laborer and was eventually promoted. As the
general union foreman, Noller was responsible to ensure that
Structure Tone laborers and carpenters were working. Howev-
er, Noller also testified that Structure Tone employed very few
carpenters and subcontracted out most of its carpentry work.
He claimed that he visited jobsites every day and stated that a
Carpenter Foreman was responsible for the carpentry work of
the subcontractors. According to Noller, Structure Tone could
have 200 different jobs a day and the biggest job he was ever
involved in employed about 40 Carpenter Foremen.
The Petitioner presented Union Representative Christopher
Wallace to testify. Wallace has been a union representative for
18 years and previously worked as a Journeyman Carpenter for
various contractors. Wallace testified that he visits jobsites as
standard procedure to introduce himself and become familiar
with the people on the job. After an initial visit, he will mainly
go to jobsites to resolve any issues that arise regarding the par-
ties’ collective-bargaining agreement. Wallace further testified
about his interaction with foremen on the jobsites he visits.
ii. Board Law
Section 2(11) of the Act defines a supervisor as any individ-
ual with the authority to hire, transfer, suspend, layoff, recall,
promote, discharge, assign, reward or discipline other employ-
ees, or responsibly to direct them, or to adjust their grievances,
or effectively to recommend such action, if in connection with
the foregoing, the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.
Pursuant to this definition, individuals are statutory supervi-
sors if they hold the authority to engage in any one of the 12
supervisory functions listed in Section 2(11); their “exercise of
such authority is not of a merely routine or clerical nature, but
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
requires the use of independent judgment” and, their authority
is held “in the interest of the employer.” Supervisory status
may be shown by demonstrating that the putative supervisor
has the authority either to perform a supervisory function or to
effectively recommend the same. See Oakwood Healthcare,
Inc., 348 NLRB 686, 687 (2006).
In considering whether the individuals in the classifications
at issue here possess any of the supervisory authority set forth
in Section 2(11) of the Act, I am mindful that in enacting this
section of the Act, Congress emphasized its intention that only
supervisory personnel vested with “genuine management pre-
rogatives” should be considered supervisors and not “straw
bosses, leadmen, set-up men and other minor supervisory em-
ployees.” Chicago Metallic Corp., 273 NLRB 1677, 1688
(1985). Thus, the ability to give “some instructions or minor
orders to other employees” does not confer supervisory status.
Id. at 1689. Indeed, such “minor supervisory duties” should not
be used to deprive such individual of the benefits of the Act.
NLRB v. Bell Aerospace Co., 416 U.S. 267, 280–281 (1974)
(quoting Sen. Rep. No. 105, 80th Cong. 1st Sess., at 4). In this
regard, it is noted that the Board has frequently warned against
construing supervisory status too broadly because an individual
deemed to be a supervisor loses the protections of the Act.
Chevron Shipping Co., 317 NLRB 379, 381 (1995); Oakwood,
supra, 348 NLRB at 688.
The burden of proof rests with the party asserting superviso-
ry status. Oakwood, 348 NLRB at 687 citing NLRB v. Kentucky
River Community Care, 532 U.S. 706, 713 (2001).
“[W]henever the evidence is in conflict or otherwise inconclu-
sive on a particular indicia of supervisory authority, the Board
will find that supervisory status has not been established, at
least on the basis of that indicia.” Phelps Community Medical
Center, 295 NLRB 486, 490 (1989). Because the party assert-
ing statutory supervisory status bears the burden of proof, the
Board holds against that party any lack of evidence on an ele-
ment necessary to establish that status. See, e.g., Dean &
Deluca New York Inc., 338 NLRB 1046, 1048 (2003); Elmhurst
Extended Care Facilities, Inc., 329 NLRB 535, 536 fn. 8
(1999). Likewise, mere inferences or conclusory statements,
without detailed, specific evidence, are insufficient to establish
supervisory authority. Golden Crest Healthcare Center, 348
NLRB 727, 731 (2006) (recognizing that “purely conclusory
evidence is not sufficient to establish supervisory status,” and
pointing Out that the Board “requires evidence that the employ-
ee actually possesses the Section 2(11) authority at issue”);
Lynwood Manor, 350 NLRB 489, 490 (2007); Community Ed-
ucations Centers, Inc., 360 NLRB No. 17, slip op. at 11(2014);
Volair Contractors, 341 NLRB 673, 675 (2004). See also
Avante at Wilson, Inc., 348 NLRB 1056, 1057 (2006) (employ-
er failed to present specific evidence showing that classifica-
tions were statutory supervisors). Thus, it is well established
that generalized and self-serving testimony of this kind cannot
suffice to prove Section 2(11) supervisory authority. See NLRB
v. Res-Care, Inc., 705 F.2d 1461, 1467 (7th Cir. 1983) (evi-
dence “limited very largely to the administrator’s general asser-
tions” not sufficient to establish supervisory authority); G4S
Regulated Security Solutions, 358 NLRB 1701, 1701,1702
(2012) (senior manager’s testimony discounted as conclusory
and nonspecific), reaffirmed and incorporated by reference 362
NLRB No. 134 (2015); Frenchtown Acquisition Co. v. NLRB,
683 F.3d 298, 305 (6th Cir. 2012) (“[g]eneral testimony assert-
ing that employees have supervisory responsibilities is not suf-
ficient to satisfy the burden of proof when there is no specific
evidence supporting the testimony” (citations omitted)).
Importantly, supervisory status is determined by the duties
performed and not the title of job classification. Thus, whether
an individual is a supervisor is to be determined in light of the
individual’s actual authority, responsibility and relationship to
management. See Phillips v. Kennedy, 542 F.2d 52, 55 (8th
Cir. 1976). The Act requires “evidence of actual supervisory
authority visibly demonstrated by tangible examples to estab-
lish the existence of such authority.” Oil Workers v. NLRB,
445 F.2d 237, 243 (D.C. Cir. 1971); Chevron, USA, 309 NLRB
59, 62 (1992). Thus, any written description suggesting the
presence of supervisory authority is not given any controlling
weight by the Board. Avante at Wilson, 348 NLRB at 1057,
Training School at Vineland, 332 NLRB 1412, 1416 (2000)
(Board insists on evidence supporting a finding of actual as
opposed to mere paper authority). See also Heritage Hall, EPI
Corp., 333 NLRB 458, 458–459 (2001) (“It is well settled that
employees cannot be transformed into statutory supervisors
merely by vesting them with the title or job description of su-
pervisor”) citing Schnurmacher Nursing Home v. NLRB, 214
F.3d 260, 266 ,(2d Cir. 2000); T.K. Harvin & Sons, 316 NLRB
510, 530 (1995).
Lastly, the Board routinely makes determinations of supervi-
sory status of entire classifications based on detailed, specific
evidence of individuals in those classifications. See e.g., Pacif-
ic Coast M.S. Industries, 355 NLRB 1422, 1426 (2010) (team
leader classification did not meet the definition of supervisor
under the Act); Rogers Electric, 346 NLRB 508, 513–514
(2006) (entire classification of foremen considered to be super-
visors within the meaning of Section 2(11)).
iii. Application of Board Law to this Case
I conclude that the Association failed to meet its burden of
proving, by detailed, specific record evidence, that the employ-
ees classified by the Association as Carpenter Foreman and
Carpenter-General Foreman are Section 2(11) supervisors. As
the Association was the party asserting that the individuals in
these classifications were statutory supervisors, the Association
was tasked with the burden of proof on this issue. During the
course of the hearing, the Association did not present any indi-
viduals classified as Carpenter Foreman or Carpenter General
Foreman to testify with respect to their day-to-day duties. The
record in general is devoid of detailed evidence as to the re-
sponsibilities and duties of the classifications. Rather, the As-
sociation relied largely on the written description of authority in
the parties’ agreement and general conclusory statements made
by two Association officials, neither of whom were ever em-
ployed as Carpenter Foreman or Carpenter General Foreman.
Nor do they currently oversee or have frequent contact with
individuals employed in those classifications.
Initially, I note that the Assistant Managing Director for the
Association, John O’Hare testified that there are only five peo-
ple on the Association’s payroll and therefore it is limited in the
BUILDING CONTRACTORS ASSOCIATION, INC. 13
type of testimony it was able to produce. However, although
the Association itself has limited resources, it did have subpoe-
na power and by its own admission, recently spoke to several of
its member-employers. Both O’Hare and Craig NoIler, the
Director of Member Services for the Association, testified that
they spoke to multiple member-employers within 2 weeks of
testifying about the job duties that those member-employers’
foremen perform. Specifically, O’Hare testified that he spoke
to National Acoustics, Inc., and NoIler testified that he spoke to
numerous contractors including Eurotech Construction Corp.,
Cirocco & Ozzimo, Inc., and Commodore Construction Corp.
Thus, it was well within the Association’s control to produce
additional testimony, specifically where it relied on hearsay
from these member-employers. This is not an instance where
the Association, could not present probative evidence from its
member-employers. Moreover, it presented no evidence that it
was unable to present witnesses who have first-hand knowledge
of specific examples of supervisory authority of foremen. I
further note that O’Hare’s testimony regarding his personal
knowledge dating back more than 15 years ago has scant rele-
vance to current foreman responsibilities and duties notwith-
standing O’Hare’s assertion that the role of Carpenter Foreman
has not changed since he was working in the field. See Avante
at Wilson, 348 NLRB at 1058 (former nurse’s testimony re-
vealed little about staff nurses’ current duties, “particularly
given the fact that it contains no reference to the time period or
individuals involved”).
Additionally, and most importantly, although the Associa-
tion’s two witnesses spoke at length about the supervisory sta-
tus of the foreman classifications, their testimony was “utterly
lacking in specificity” and neither was able to provide any spe-
cific evidence, recent or otherwise, addressing the supervisory
status of the foreman classifications. See Avante at Wilson, 348
NLRB at 1057 (rejecting claim of supervisory status absent
evidence of specific examples), and other cases cited above at
pp. 5–6. The Board in Avante at Wilson emphasized that a
witness who testified that she believed she had the authority to
send an insubordinate employee home failed to particularize
her testimony in any way, such as by specifying when any such
incident took place, who was involved, what the alleged insub-
ordination consisted of, whether higher-level managers had
been consulted, or whether the situation was anything more
than a one-time occurrence. See Avante at Wilson, 348 NLRB
at 1057. Here, while O’Hare and Noller testified generally as
to foreman responsibilities, neither of them particularized their
testimony in any way, such as by specifying any specific inci-
dents that they might have witnessed, including any hiring,
firing, discipline, assignment of work, adjusting grievances, or
any other supervisory duties performed by foremen. Further,
although O’Hare testified that he visits several jobsites a week,
he failed to specify which jobsites he visits, the names of the
foremen he observed while on the jobsites, or any other detailed
information to meet the Association’s burden.
I further rely on the following analysis and record evidence
concerning supervisory indicia.
1. Authority to hire and fire
The Association contends that foremen are statutory supervi-
sors based on their ability to hire and fire that is documented in
the parties’ collective-bargaining agreement. O’Hare testified
that foremen are usually the first person on a jobsite and that
they would read the blueprints and lay out the partitions of the
project, order materials, schedule deliveries, and coordinate
with other building trades on the work to be done. After a
foreman lays outs the work to be done, he would seek approval
from the architect or owner and then he decides on how many
carpenters he needs to get the work done.
The record evidence demonstrates that once a foreman knew
how many carpenters to employ on a jobsite, the foreman
would consult a hiring list that was compiled by the contractor.
Each contractor maintains a list of eligible carpenters to hire
and adds or removes individuals from that list based on a con-
tractor’s experience with those employees in the past. O’Hare
testified that a foreman would select carpenters from the list to
be hired but did not provide any specifics regarding hiring cri-
teria, i.e., placement on the list, seniority, skill sets, familiarity
with work, etc. According to O’Hare, the foreman would then
call individuals on the list to hire them but failed to provide any
examples or first-hand knowledge of those calls. O’Hare also
testified that when he was a project manager, if an ongoing job
required additional carpenters to be hired, a foreman would
contact him for additional men and O’Hare as the project man-
ager would give him the authority to make the phone calls to
hire more individuals.
Prior to a few years ago, hiring was more complicated due to
a manning ratio provision in the parties’ collective-bargaining
agreement. Under that provision, contractors were required to
hire a certain percentage of carpenters off the Petitioner’s out of
work, list maintained by the Petitioner that contained a list of
individuals ready for hire. Thus, contractors would hire half of
the carpenters via its own hiring list and the other half of the
carpenters through the Petitioner’s out of work list. However,
the parties no longer have manning ratios and contractors are
able to hire exclusively from their lists or rely on the Petition-
er’s out of work list for referral.
Similar to the foremen contacting carpenters from the con-
tractor’s hiring list, O’Hare testified that foremen would call a
carpenter on the Petitioner’s out of work list to hire them, but
again failed to give any specific example or first-hand
knowledge of one of those calls. The testimony of Union Rep-
resentative Wallace directly contradicts O’Hare’s testimony
regarding the Petitioner’s out of work list. Wallace testified
that there are approximately 40 to 100 requests every day from
the Association’s member-employers to the Petitioner for dis-
patches of carpenters. Wallace testified that he receives a dis-
patch sheet via email every night from the Petitioner. The dis-
patch sheet lists the carpenters that are dispatched, their phone
numbers, the names of the company they were sent to, the job
location of the company, and the date and time that they are
supposed to report for work. The sheet also lists the foreman’s
name and phone number as well as the name of the person who
called the out of work list for the dispatch to be generated.
According to Wallace, the most recent dispatch sheet prior to
the hearing contained 38 dispatches but there was only one
instance where the name of the person who called the Petitioner
was the same name and phone number as the foreman listed.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wallace also testified that because he looks at the dispatch
sheet every day, he recognizes a large number of names and
can identify whether those people are project supervisors, man-
agers, or other contractor officials. Further, Wallace stated that
in his experience, a foreman will call a contractor’s office and
someone from the office will make the call to the out of work
list.
I conclude the Association failed to meet its burden to
demonstrate that foremen have the authority to hire carpenters.
Initially, the Association’s witnesses failed to particularize their
testimony in any way concerning instances where foremen
hired carpenters. There is no evidence that O’Hare or Noller
were present during any instances where a foreman hired any
carpenters. Importantly, there are no examples of situations in
the record where a foreman actually hired a carpenter. Moreo-
ver, notwithstanding the extreme lack of specificity, there is no
evidence that foremen used any discretion or independent
judgment in making hiring decisions. See Sears, Roebuck &
Co., 304 NLRB 193, 193 (1991) (absence of independent
judgment is an important factor weighted by the Board in mak-
ing its supervisory determinations). There is testimony that
foremen merely place phone calls to carpenters to tell them
they were hired but there is no discussion of any independent
judgment that a foreman makes in determining which carpen-
ters are hired, such as selecting, screening, or interviewing
candidates. Thus, any exercise of supervisory hiring authority
from foremen is of a routine and perfunctory manner. See
Oakwood, 348 NLRB at 693 citing Bowne of Houston, 280
NLRB 1222, 1223 (1986). While foremen may place phone
calls to carpenters, “mere participation in the hiring process,
absent the authority to effectively recommend hire, is insuffi-
cient to establish supervisory authority.” North General Hospi-
tal, 314 NLRB 14, 16 (1994). Further, there is contradictory
testimonial evidence that, at least as to the Petitioner’s out of
work list, that the vast majority of hiring phone calls come from
the contractor’s office and not from a foreman. Lastly, alt-
hough there is evidence that foremen might make the initial
determination of how many carpenters to have, O’Hare’s testi-
mony that foremen seek authority from the project manager
before hiring more carpenters suggests that foremen also need
to clear their initial recommendations with a contractor’s office
as well.
Additionally, there is no evidence that foremen have the abil-
ity to independently discharge any carpenters. O’Hare testified
that a foreman will communicate to a carpenter that he has been
laid off or terminated but there is no evidence that foreman use
their own independent judgment to determine to terminate any
employees. O’Hare further testified that a foreman would re-
port to O’Hare as the project manager via the contractor’s of-
fice that a specific project area was done and that he no longer
needed the full complement of carpenters that were employed.
O’Hare would then instruct the foreman to lay off the carpen-
ters that were no longer needed. Thus, while a foreman may be
the individual relaying the termination to a carpenter, the ter-
mination itself is determined by the contractor’s office and the
obvious needs of the jobsite.
At most, Wallace testified to one situation where if a carpen-
ter was intoxicated, a foreman would send that person home but
further testified that “it’s almost like the employee laid himself
off if he’s drinking on the job.” Wallace states that the foreman
in that situation would also contact the contractor’s office and
the steward to solve the problem. Even using Wallace’s testi-
mony, there is no evidence that foremen use any independent
judgment during discharges and that their authority is routine in
nature. In every instance, it appears that foremen must contact
the contractor office before taking any action concerning dis-
charge.
Lastly, while the Association relies heavily on the language
of the parties’ agreement referencing Carpenter Foremen and
General Carpenter Foremen as agents and authorized represent-
atives of the Association that have the “right to hire and dis-
charge employees,” the Board has repeatedly stated that job
descriptions or other paper authority, without more, do not
establish actual supervisory authority. Training School at Vine-
land, supra, 332 NLRB at 1416 (“Job descriptions or other
documents suggesting the presence of supervisory authority are
not given controlling weight. The Board insists on evidence
supporting a finding of actual as opposed to mere paper au-
thority”). Although the paper authority in this case comes from
the parties’ bilateral agreement as opposed to an employer’s
unilateral job description, the Petitioner is seeking a certifica-
tion of representative. In that context, I must decide the statuto-
ry issue based on actual duties pursuant to the Act and not the
agreement of the parties. Thus, notwithstanding that the par-
ties’ agreement states that “[t]he right to hire and discharge
employees, rests with the General Foreman and/or Foreman,”
there must be an examination of whether the classifications
actually possess that authority. As described in detail above
and manifest by the lack of tangible examples, there is no evi-
dence that the classifications have actual supervisory authority
to hire and discharge employees.
Given the scant evidence as to specific and actual authority
of foremen in hiring and firing carpenters, and the principle that
any lack of evidence will be constructed against the party as-
serting supervisory status, I find that the evidence does not
support the Association’s claim that foremen have authority, as
defined in Section 2(11) of the Act, to hire or fire carpenters.
2. Authority to responsibly direct
The Association’s witnesses testified that foremen direct all
the carpenters on a jobsite including determining how many
carpenters are required to complete a specific task but failed to
describe with any particularity actual incidents where foremen
responsibly directed carpenters. The mere fact that an employ-
er states that an employee “supervises” other employees or
holds that employee out to other employees as a “supervisor” is
not enough to establish that that individual is a supervisor with-
in the meaning of Section 2(11) of the Act. See, e.g., Polyne-
sian Hospitality Tours, 297 NLRB 228 (1989), enforced 920
F.2d 71 (D.C. Cir. 1990); Chevron Shipping, 317 NLRB at 381
fn. 6 (statement that individual “oversees” others does not es-
tablish supervisory status absent specific proof that such power
was exercised with independent judgment). Thus, as men-
tioned above, such conclusory evidence is insufficient to prove
supervisory status.
BUILDING CONTRACTORS ASSOCIATION, INC. 15
It is well established that the authority to direct another’s
work does not indicate supervisor status unless it is both “re-
sponsible” and requires the use of independent judgment.
Oakwood, 348 NLRB at 691. To be “responsible” under Sec-
tion 2(11), the putative supervisor “must be accountable for the
performance of the task by the other, such that some adverse
consequence may befall the one providing the oversight if the
tasks performed by the [other] are not performed properly.” Id.
at 692. See also Alstyle Apparel, 351 NLRB, 1287, 1287
(2007) (employer must present evidence of actual accountabil-
ity to prove responsible direction).
Here, the Association presented no evidence on whether the
foremen classifications are held accountable by its member-
employers for the work performance of the carpenters. Nor did
the Association present any evidence to show that the foremen
classifications were in danger of suffering “adverse conse-
quences” if the carpenters whom they assigned tasks failed to
perform those tasks properly. See Oakwood, 348 NLRB at 692.
Likewise, the evidence did not show if any foreman had been
reprimanded—or rewarded—because of anything the carpen-
ters had done or failed to do. Thus, because the Association
failed to present any evidence of actual accountability, it has
not satisfied its burden of proof of demonstrating that the fore-
men responsibly directed the carpenters.
3. Authority to assign or transfer work
The Association has also failed to adduce sufficient evidence
to establish that foremen exercise supervisory authority by
assigning work. The Association’s witnesses testified that
foremen assign work by (1) assigning overtime and (2) reas-
signing carpenters to other jobsites. Once again, the Associa-
tion failed to give any specific examples or detailed instances
of foremen assigning overtime or reassigning employees to a
different jobsite where independent judgment was exercised.
O’Hare testified that foremen decide how many and which
carpenters will work overtime but that it is the jobsite condi-
tions that dictate whether overtime is necessary. Further,
O’Hare testified that foremen needed to clear all overtime with
the front office, suggesting that foremen have no independent
judgment to assign overtime on their own. Thus, because of the
lack of specific examples to develop O’Hare’s purely
conclusory statements, the evidence does not establish that the
assignment of overtime requires foremen to use independent
judgment. See Golden Crest Healthcare, 348 NLRB at 731
(“purely conclusory evidence is not sufficient to establish su-
pervisory status; instead, the Board requires evidence that the
employee actually possesses the Section 2(11) authority at is-
sue”); Chevron Shipping, 317 NLRB at 381 fn. 6 (1995)
(conclusory statements without supporting evidence do not
establish supervisory authority).
Moreover, as to the Association’s testimony that foremen
can reassign carpenters to different jobsites, such reassignments
and transfers appear to be no more than merely equalizing the
workload and do not necessitate independent judgment. Lyn-
wood Manor, 350 NLRB at 490; Oakwood Healthcare, 348
NLRB at 693 (“if the assignment is made solely on the basis of
equalizing workloads, then the assignment is routine or clerical
in nature and does not implicate independent judgment, even if
it is made free of the control of others and involves forming an
opinion or evaluation by discerning and comparing data”).
Accordingly, the evidence presented by the Association is
insufficient to establish these indicia. Phelps Community Med-
ical Center, 295 NLRB at 490. Thus, the Association has not
shown that foremen assign work or transfer employees.
4. Authority to discipline
The record is devoid of any testimony or documentary evi-
dence that demonstrates that foremen issue or recommend any
discipline to any employee. Although, the record established
that the foremen report employee misconduct, such as intoxica-
tion to a contractor’s office, there is no evidence that the classi-
fications can independently issue discipline nor is there any
evidence that their recommendation, if any, is a determining
factor when a contractor decides whether to issue discipline and
to what degree. As noted above, there is nothing about sending
an employee home for being intoxicated that would require the
use of independent judgment. Therefore, the Association has
failed to meet its burden of proof to demonstrate that foremen
have the authority to discipline employees.
5. Authority to adjust grievances
The Association claims that Carpenter Foremen and Carpen-
ter General Foremen represent member-employers in resolving
grievances on jobsites. All parties agree that any such adjust-
ment is limited to step one of the grievance procedure and that
foremen do not play any managerial role in steps two or three
of the procedure, including monthly grievance hearings and
arbitrations, other than to occasionally testify if need be. The
Association was unable to give any specific examples of griev-
ances that a foreman could resolve on his own authority and
only provided generalized conclusory evidence. For example,
O’Hare testified that in his personal experience from more than
15 years ago, carpenter foremen handled grievances on the
jobsite and would try to resolve them on behalf of the contrac-
tor. Additionally, Noller testified that when he worked for
Structure Tone, if there was a dispute that arose with a car-
pentry subcontractor, he would initially speak to the carpenter
foreman about the dispute.3
Wallace testified that foremen handle low threshold issues
that do not have much effect on behalf of the member-
employers on the jobsite. Specifically, foremen would attempt
to resolve minor issues where people are not getting along.
Additionally, Wallace testified that he would be able to resolve
simple one-off disputes with a foreman where a foreman want-
ed to work through lunch without paying overtime or wanted to
start work a few minutes early one day. Wallace also testified
that in his experience, the majority of foremen would direct him
to someone else such as a supervisor or owner to handle an
issue. Specifically, he mentioned that foremen would direct
him to someone else on issues involving manning ratios,

3 Although Noller testified that he would initially contact the fore-
man of a carpentry subcontractor if there was an issue when he was at
Structure Tone, he provided no specificity as to whether the foreman
was able to resolve the issue or not. Most importantly, that testimony
bears no relevance as to whether foremen can adjust union-related
grievances.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
layoffs, overtime, start and quit times, and Saturday makeups.
As to the manning ratio issue, there is record evidence that
Wallace and other business agents eventually stopped contact-
ing foremen and directly contacted the member-employer’s
offices because the vast majority of the time, foremen did not
want to deal with the issue and would refer the agents to project
supervisors, managers, and company owners. In other larger-
scale matters, O’Hare similarly testified that in his capacity for
the Association, he is involved in resolving jurisdictional dis-
putes and is notified via a call from a project manager and not a
foreman.
Wallace testified about a recent grievance with Navillus
Contracting, one of the Association’s member-employers.
There were issues on the jobsite regarding cold temperatures
and the contractor attempted to invoke a provision of the par-
ties’ agreement that stated if the contractor cannot work during
the week for various reasons, including severe weather, it can
work on Saturday at a straight time rate instead of being re-
quired to pay the overtime rate of time and a half. Wallace did
not let the contractor invoke the provision because there were
other days where the carpenters worked that were similar tem-
peratures to the day the contractor claimed was too cold to
work. The Petitioner filed a grievance over the matter because
when the carpenters’ paychecks arrived, they were only paid
straight time and not time and a half. Wallace testified that
every time he was to the jobsite to discuss the issue, he met
with Kevin Smith, the project supervisor or manager for the
contractor and at no time did any of the foremen get involved in
any substantive discussions or attempt to resolve the grievance.
According to Wallace, the foremen directed him to talk to
Smith because they had no authority to resolve the issue.
Based on the record, the Association did not meet its burden
of establishing that Carpenter Foremen and Carpenter General
Foreman adjust grievances. Although the authority to adjust
grievances can evidence supervisory status, the resolution of
minor employee complaints regarding workload, lunch and
break schedule conflicts, or personality conflicts has not been
found to be sufficient to establish 2(11) supervisory status.
Regal Health & Rehab Center, Inc., 354 NLRB 466 (2009),
reaffirmed and incorporated by reference 355 NLRB 352
(2010); Riverchase Health Care Center, 304 NLRB 861, 865
(1991); Ohio Masonic Home, 295 NLRB 390 (1989). See also
St. Francis Medical Center-West, 323 NLRB 1046, 1048
(1997) (authority to resolve personality conflicts or “squabbles”
between employees does not warrant an inference sufficient to
establish supervisory status).
Although the Association contends that foremen possess the
authority to adjust carpenters’ contractual grievances, it could
not provide any examples of a foreman exercising independent
judgment in adjusting any employee grievance. Rather, the
strongest evidence came from Wallace, who only provided
general examples of where a foreman would merely ensure that
people got along or that the contractual overtime provisions
were followed. This authority can only be characterized as
routine and clerical and not requiring the use of independent
judgment. As previously noted, the exercise of authority that is
merely routine or clerical clearly does not suffice to show su-
pervisory authority as defined by Section 2(11) of the Act. Ken-
tucky River Community Care, 532 U.S. at 713.
6. Other supervisory functions
There is no record evidence showing that foremen can re-
ward or promote any employees or that they can effectively
recommend raises or promotions. Although O’Hare testified
that he would rely on carpenter foremen to recommend a jour-
neyman carpenter for a promotion to a foreman position, he
failed to cite any specific examples. Additionally, O’Hare testi-
fied that foremen would recommend whether to keep carpenters
on a contractor’s hiring list but there is no specific evidence
that contractors followed their recommendations. Such gener-
alized, conclusory statements from the Association are not suf-
ficient to establish supervisory status.
7. Secondary indicia
While secondary indicia can be a factor in establishing statu-
tory supervisory status, it is well established that where, as
here, putative supervisors are not shown to possess any of the
primary supervisory indicia, secondary indicia are insufficient
to establish supervisory status. Golden Crest Healthcare Cen-
ter, 348 NLRB at 730 fn. 10; Ken-Crest Services, 335 NLRB
777, 779 (2001). Here, the Association argues that the parties’
collective-bargaining agreement contains evidence of second-
ary indicia to demonstrate that the foremen are statutory super-
visors—the wage differential between foremen and journeymen
carpenters and the language in article VI that states that fore-
men are agents and authorized representatives of the Associa-
tion. However, absent evidence that foremen actually possess
the primary indicia of supervisory status, the secondary indicia
which the Association advances are insufficient to establish
supervisory status.
Based on the above and extant Board law, I find that the As-
sociation failed to meets its burden by specific, detailed record
evidence, and that the record is insufficient to prove that the
individuals in the Carpenter Foreman and General Carpenter
Foreman classifications are supervisors within the definition of
Section 2(11) of the Act.4 Thus, I shall include them in the unit
and they shall be permitted to vote.
III. CONCLUSIONS AND FINDINGS
Based upon the entire record in this matter and for the rea-
sons set forth above, I conclude and find as follows:

4 Because I have found the classifications not to be supervisors with-
in the definition of Section 2(11) of the Act, it is unnecessary to deter-
mine whether the classifications are permanent or assigned on a rotat-
ing basis. See Oakwood Healthcare, 348 NLRB at 694 (an individual
must spend a regular and substantial portion of his/her work time per-
forming supervisory functions); see also Aladdin Hotel, 270 NLRB
838, 830–840 (1984). However, for the sake of completeness, I con-
clude that the record establishes a class of Carpenter Foremen and
Carpenter General Foremen, rather than a rotating title that the majority
of the bargaining unit obtains. Both O’Hare and Noller testified that
once an individual becomes a foreman, they generally remain a fore-
man. Although there is testimony that foremen can seldom work as
journeymen carpenters on a jobsite, particularly during an economic
downturn according to Wallace, that is not enough to disprove that the
foreman classifications are stable.
BUILDING CONTRACTORS ASSOCIATION, INC. 17
1. The Hearing Officer’s rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
2. The parties stipulated, and I found that the Association
provides intrastate services valued in excess of $50,000 to enti-
ties who perform interstate services valued in excess of $50,000
and is therefore engaged in commerce within the meaning of
the Act, and it will effectuate the purposes of the Act to assert
jurisdiction in this case.
3. The parties stipulated, and I found, that the Petitioner is a
labor organization that claims to represent certain employees of
the Association’s member-employers.
4. A question affecting commerce exists concerning the rep-
resentation of certain employees of the Association’s member-
employers within the meaning of Section 9(c)(1) and Section
2(6) and (7) of the Act;
5. The following employees of the Association’s member-
employers who designated the Association to bargain on their
behalf with respect to the Petitioner constitute a unit appropri-
ate for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
INCLUDED: Journeyman, Carpenter, Journeyman Carpen-
ter, Journeyman Carpenter Apprentices, Carpenter Foreman,
and Carpenter General Foreman;
EXCLUDED: All other employees, including clerical em-
ployees, guards, and professional employees, and supervisors
as defined by the Act.