Building Trades Council, Kern, Inyo and Mono Counties (Golden Queen Mining Co., Inc.)

National Labor Relations Board - Administrative Judge Opinions

Dec 7, 2015

31-CE-129697 (N.L.R.B. Dec. 7, 2015)

JD(SF)–47–15
Kern, Inyo, and
Mono Counties, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH
KERN, INYO AND MONO COUNTIES BUILDING AND
CONSTRUCTION TRADES COUNCIL1
and Case 31–CE–129697
GOLDEN QUEEN MINING CO., LLC.2
Simone Gancayco, Esq., John Rubin, Esq.,
for the General Counsel.
Ray Van Der Nat, Esq., for the Respondent.
Richard N. Hill, Esq. and Jason Shapiro, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. This case was tried in Los Angeles,
California, between June 24 and 26, 2015, upon the complaint in Case 31–CE–129697 issued
on October 28, 2014, by the Regional Director for Region 31.
The complaint alleges that Building Trades Council, Kern, Inyo and Mono Counties
(Respondent) violated Section (8)(e) of the Act by entering into and reaffirming an agreement in
which the Employer has agreed not to do business with another employer or person.
Respondent filed a timely answer to the complaint and stated it had committed no
wrongdoing.
Findings of Fact
Upon the entire record, including the briefs from the counsel for the General Counsel,
Charging Party, and Respondent, I make the following findings of fact.

1 At the hearing the name of Respondent was corrected to Kern, Inyo and Mono Counties Building
and Construction Trades Council.
2 At the hearing the name of Charging Party was corrected to Golden Queen Mining, LLC.
JD(SF)–47–15
5
10
15
20
25
30
35
40
45
50
2
I. Jurisdiction
In its answer, Respondent denied the commerce allegations in complaint paragraphs 1
through 3. However, at the hearing evidence was adduced that established that Golden Queen
Mining, LLC (Employer) has been a corporation with an office and place of business in Mojave,
California, and has been engaged in the development and operation of a gold and silver mine
on Soledad Mountain in Kern County, California. The record reflects that during the 12-month
period ending June 3, 2014, the Employer in conducting its business described above
purchased and received at its Mojave, California facility goods and/or services valued in excess
of $50,000 directly from points outside the State of California. At all material times, the
Employer has been an employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. Labor Organization
Respondent stipulated3 that it is a labor organization within the meaning of Section 2(5)
of the Act in which employees participate and which exists for the purpose of dealing with
employers concerning wages, hours, and other terms and conditions of employment. The
parties also stipulated that John Spaulding (Spaulding) has held the position of executive
secretary and has been an agent of Respondent within the meaning of Section 2(13) of the Act
because he possesses and exercises the authority to represent Respondent in labor relations
matters involving the Employer and that Ray Van der Nat (Van der Nat) has held the position of
attorney and has been an agent of Respondent within the meaning of Section 2(13) of the Act
because he possessed and exercised the authority to represent Respondent in matters with the
Employer in 2014. I find that Respondent is a labor organization within the meaning of Section
2(5) of the Act.
III. The Alleged Unfair Labor Practices
A. The Facts
The parties stipulated4 that they entered a Project Labor Agreement (PLA) on about
August 20, 1997, and that on or about May 13, 2014, Respondent requested to arbitrate a
grievance filed pursuant to the PLA, as alleged in complaint paragraphs 6(a) and (b). The main
issue for resolution is whether the Employer has been engaged as a construction industry
employer within the meaning of Section 8(e) of the Act and therefore whether the PLA falls
within the first proviso to Section 8(e).
B. History of the Mining Operation at Soledad Mountain
The Employer, Golden Queen Mining Company, LLC, is presently developing the
Soledad Mountain Project (Soledad Project). The Soledad Project is an open pit mine and heap
leach process designed to extract and recover gold and silver. The Soledad Project is located
approximately 90 miles north of Los Angeles and near Mojave, California.

3 GC Exh.2.
4 Ibid.[used in citations.]
JD(SF)–47–15
5
10
15
20
25
30
35
40
45
50
3
1. The initial phase of the mine development
The Employer began developing the Soledad Project in about 1996 under the direction
of Richard Graeme (Graeme), the Employer’s vice president of operations. Commencing in
1996, Graeme’s job was to determine if there was a viable mineral deposit at Soledad Mountain,
i.e., gold or silver, through sampling and core drilling, identify the process by which the ore was
to be recovered, engage in pre-engineering to develop the design of the mine, obtain permits for
the Soledad Project from the various Federal, State and local regulatory agencies, conduct
further engineering to further define the mineral deposit and finally commence construction.
From 1996 to about 1999, the Employer had from seven to12 employees including
contract geologists who engaged in sample collection and core logging to determine the quality
and amount of mineral, a human resources manager and other office clericals, in addition to a
mine engineer who engaged in ore reserve modeling and mine processing. Graeme estimated
that in order to construct the Soledad Project, the employer would have needed between 300
and 400 employees.
Prior to 1999, no construction on the mine or its facilities took place. According to
Graeme the Employer planned to enter into an Engineering Procurement and Construction
Management (EPCM) agreement for constructing the mine.
Graeme, who had 55 years of experience in the mining industry, explained an EPCM
agreement is a mining industry practice for mine construction. Graeme said that since the
Employer had no expertise in mine construction, it planned to use an EPCM contractor.
According to Graeme, under an EPCM contract, the mine operator turns over responsibility for
construction to the third party EPCM contractor that is responsible for completing final
engineering documents, procuring all necessary construction materials and equipment, and
construction management. The EPCM contractor employs all subcontractors and manages
them.
In March 1998 M3 Engineering of Tucson, Arizona, issued a feasibility report5 for the
Employer. The report corroborates Graeme’s testimony and shows that the Employer planned
to utilize an EPCM contractor for the Soledad Project construction.
Figure 2.1 of the above report indicates that the Employer would use an EPCM
contractor for all facets of construction, including subcontracts for general site-work, concrete,
structural steel, mechanical, piping, plate-work, dust collection, electrical, instrumentation, and
ancillary buildings.
Section 2.2.3 of the report defines the role of the EPCM contractor:
EPCM contractor will be an independent contractor operating under an
agreement entered into with GQMC. This agreement will identify the deliverables
(work products) required, and the reporting and approval requirements, and will
set minimum standards for work quality and performance. Dates for completion
of various parts of the services, the responsibilities of GQMC and commercial
aspects will also be part of this agreement.

5 GC Exh.9.
JD(SF)–47–15
5
10
15
20
25
30
35
40
45
50
4
By 1996, the Employer had conducted testing of noise, air, and water and had
purchased property. In seeking to obtain the necessary permits, Graeme met with regulatory
authorities from Kern County, including the Water board and the Air Board. Graeme was also
engaged in a PR campaign with Mojave area residents to gain their approval of the mine to
avoid local opposition that might hinder the permitting process.
Respondent and other local unions sought a Project Labor Agreement (PLA) for the
mine project in about 1997. On August 20, 1997, the parties signed the PLA.6 The PLA
provides in pertinent part:
1. INITIAL PROVISIONS
1.5 Primary Employer represents and warrants that is an
employer in the building and construction industry because, at the
commencement of construction and as of the date of executing this
Agreement, it directly employs persons in the building and construction
trades, will employ such persons on the Project, and will continue to do so
until completion of the commissioning of the Project. (GC Ex. 3 at 3).
2. PURPOSE
2.1. A large labor pool represented by the Unions will be required
to execute the work involved in the Project. Employers wish, and it is the
purpose of this Agreement, to ensure that a sufficient supply of skilled
craft workers are available at the Project, that all construction work and
related work performed by the members of the Unions on this Project
shall proceed continuously, without interruption, in a safe and efficient
manner, economically with due consideration for the protection of labor
standards, wages and working conditions.
2.2. In furtherance of these purposes and to secure Optimum productivity,
harmonious relations between the parties and the orderly performance of the
work, the parties to this Agreement agree to establish adequate and fair wage
levels and working conditions and to protect the Project against strikes and
lockouts and other interference with the process of the work.
5. SUBCONTRACTING
5.1 The Primary Employer agrees that any contractor or
subcontractor at any tier performing Covered Work on the Project shall be (i)
signatory to this Agreement, and (ii) signatory to a multi-employer collective
bargaining agreement with one or more of the Unions for the Soledad Mountain
Project.
5.2 Nothing in this Agreement shall in any manner whatsoever
limit the rights of the Primary Employer, or any other Employer, to subcontract
work or to select its contractors or subcontractors, provided, however, that all
Employers, contractors, or subcontractors, at all tiers, performing Covered Work

6 GC Exh.3.
JD(SF)–47–15
5
10
15
20
25
30
35
40
45
50
5
shall be required to comply with the provisions of this Agreement. Employer shall
notify each of its contractors and subcontractors of the provisions of this
Agreement and require as a condition precedent to the award of any construction
contractor or subcontract for Covered Work, that all such contractors and
subcontractors at all tiers become signatory to this Agreement. Employers shall
become signatory to this Agreement by signing an Employer Agreement to be
Bound, which is provided as Attachment A to this Agreement.
Graeme initially received a copy of the PLA7 from the Employer’s attorney, Jim Good
(Good), on about July 8, 1997. On July 9, 1997, Good sent a faxed version of the proposed
PLA with the additional proposed language, “The Unions have reviewed the environmental
documents proposed by the County of Kern and the Bureau of land management for the
Project, and agree that they will not oppose or otherwise interfere with the permitting and
construction of the Project.”8 On July 10, 1997, Good sent another proposed version of the PLA
which contained language that read, “The Unions recognize the importance of this Project for
the local economy of eastern Kern County and support this Project for the permanent jobs it will
provide.”9
Graeme testified credibly that he signed the PLA because he was afraid that the local
unions could oppose the project that the employer had already invested millions of dollars in.
Graeme’s testimony in this regard is corroborated by contemporaneous written reports. I credit
Graeme.
A June 10, 1997 monthly report10 to the Employer’s directors from Employer President
Steve Banning reflects Graeme’s fears that the unions could raise environmental objections to
the Soledad Project in the permitting process:
A union has spent considerable money dissecting the Draft EIS/EIR and has
proposed to us that they will support the project if we agree to have union labor
construct the project. Negotiations are underway, and it appears that the situation
will be resolved without impacting the permitting schedule.
The report explains further the Employer’s efforts to negotiate an agreement with the local
unions:
It was brought to our attention that an unusual amount of research into our Draft
EIS/EIR was being conducted by a law firm in Bakersfield. Upon our inquiry, it
was discovered that they were representing a building and construction crafts
union, and that the union is interested in providing their support (which means
not impeding the process) in exchange for our agreement to use union labor to
construct the project. With the assistance of local legal counsel, we are currently
negotiating an agreement with this union to allow their involvement during the
construction phase of the project only.

7 GC Exh.4.
8 GC Exh.5.
9 GC Exh.6.
10 GC Exh.7.
JD(SF)–47–15
5
10
15
20
25
30
35
40
45
50
6
An August 6, 1997 memorandum11 from Banning to Graeme states:
Several meetings were held with representatives of the Kern, Inyo and Mono
counties Building and Construction Trades Council. The intent on the part of the
unions was to force GQMC to enter into an agreement whereby all initial
construction would be union. The leverage used by this group was the threat of
substantially delaying the permits through challenging the air model and other
aspects of the EIR/EIS. An agreement was signed after it was confirmed through
several independent sources including the Kern County Air Board that this was a
very real threat to the project permitting. The next decision is how to handle an
agreement signed under duress.
According to Graeme, whose testimony I credit, at the time he signed the PLA, he was
unaware of any conflict in the Mojave area between union and nonunion employees and that
during negotiations for the PLA, the parties never discussed entering into the PLA to avoid
jobsite friction between union and nonunion employees. Graeme testified that he never told the
unions involved that the Employer would act as its own general contractor and that it wanted to
choose subcontractors on the project, that it would supervise the day-to-day onsite construction
work, and that it wanted to directly hire employees in the building and construction trades.
Graeme admitted that while he signed the PLA under duress he felt he had obligated the
Employer to the terms of the PLA.
While Respondent in its brief suggests that Graeme admitted that the Employer
employed construction employees at the Soledad Project,12 Graeme immediately clarified that
any employees would be employed by the independent EPCM contractor.13
Graeme admitted that he did not remember attending any of the negotiations for the
PLA, being involved in the PLA negotiations, when the PLA negotiations took place, where they
took place, who attended, or what was discussed.
Mitch Rolow was the business manager of the International Brotherhood of Electrical
Workers Local 428 located in Kern County, California, from 1992 thru May 1998. He testified
that during that time period, there was a general decline in the amount of construction work
being performed on a union basis and that most of the construction jobs were a mix of union
and nonunion contractors. He claimed there was always someone picketing at constructions
sites. When another union picketed on a job where union electricians were employed, Rolow
testified that it disrupted the flow of everything on the job.
Rolow was involved in the negotiations for the PLA for the Soledad Project. According
to Rolow, the Employer discussed its desire of hiring electricians directly on the Employer's
payroll and Local 428 helping the Employer in getting its permits from the local regulatory
agencies. The parties discussed that each subcontractor performing project work would have to
be signatory to the craft unions master labor agreements.

11 GC Exh.8.
12 Tr. at 83, LL. 15–20.
13 Tr. at 83, LL. 21–25.
JD(SF)–47–15
5
10
15
20
25
30
35
40
45
50
7
I found Rolow’s testimony concerning the negotiations for the PLA and the Employer’s
requests for assistance with the permitting process vague and lacking in the specificity
necessary to credit his testimony. Given Graeme’s credible testimony that the Employer at all
times intended to hire an EPCM general contractor and the documentary evidence in the form of
M3 Engineering’s feasibility report that the Employer intended to hire an EPCM general
contractor, I find Rolow’s 18-year-old testimony incredibly convenient and tailored to
Respondent’s position.
Ray Simmons was the business representative and financial secretary of Carpenters
Local 743, which covered the Kern, Inyo and Mono county area, from 1976 to July 2013.
According to Simmons, during the 1995–1997 timeframe, 50 to 60 percent of the construction
projects in the area were performed on a nonunion basis. During the same timeframe,
Simmons spent 20 percent of his time in picketing activities. All of the other building trades
unions were similarly engaged in picketing activities. When carpenter members honored the
picket line of other construction unions, some of the contractors for who those members worked
would be removed from the job.
Simmons was involved in the negotiations that resulted in the PLA for the Soledad
Project. According to Simmons, at the first negotiating meeting between the parties, the
Employer presented the intended project, stated that they wanted help in the permitting process
for the job and that they wanted a qualified work force to draw from. Simmons testified that the
Employer stated that they were going to self- perform project work and would be hiring, directly,
members of the various trades to perform that work.
In view of the Employer’s documented plans to use an EPCM contractor for the Soledad
Project as well as its lack of in-house expertise in construction, I find it hard to believe that
representatives of the Employer told Simmons that they would act as their own general
contractor and directly hire members of the trade unions. Moreover, Simmons’ recollection of
the PLA meetings and representations by the Employer that it would be its own contractor must
be called into question since Simmons claims that Klingmann was at the 1997 PLA negotiations.
This cannot be correct as Klingmann was not involved in the Soledad Project until 2001.
In an October 2013 lunch meeting, Respondent’s executive secretary, John Spaulding
(Spaulding), claimed that the Employer's counsel, Katy Raytis (Raytis), told him that Klingmann
acted as the Employer’s construction manager. In view of Spaulding’s earlier testimony that he
believed the Employer hired no employees for the Soledad Project but used only general
contractors and subcontractors and given Klingmann’s total lack of expertise in construction,
I cannot credit Spaulding’s testimony that Raytis would have represented Klingmann to be the
Employer’s construction manager.
2. The 1999–2012 hiatus and reopening of the project
While the Employer was able to obtain the necessary permits for the mine, construction
never took place and the Soledad Project was ultimately shut down in 1999 because of
unfavorable gold prices.
Lutz Klingmann (Klingmann), who was president of Golden Queen, Limited, took over
and reopened the Soledad Project in 2001. Klingmann was also the chief executive officer of
Golden Queen LLC beginning in September 2014. In addition, he served as a director of
Golden Queen Mining Company, Limited, from 1989 until 1996, during which time he had little
involvement with the mine. Due to new permit requirements, it took the Employer from 2001
until 2012 to obtain the required permits for the mine. From October 2012 until the middle of
JD(SF)–47–15
5
10
15
20
25
30
35
40
45
50
8
2013, the Employer sought financing for the mine project and in July 2013 began mine
development.
Klingmann decided that instead of using an EPCM contractor, the Employer would use
turnkey project contracts. Klingmann, after identifying and performing the specifications for
each component piece of the mine, then negotiated with one or two contractors for each mine
component as a turnkey project, i.e., fully completed by the contractor. The parties executed
the turnkey project contract, and a notice to proceed was issued by the Employer. The
contractors proceed with all aspects of the actual construction, and the Employer had only a
coordination role in the process.
The various turnkey projects included the workshop warehouse, assay laboratory, the
earthworks required for building facilities, a project for stacking and conveying, electrical work,
crushing screening plant, and the Merrill-Crowe plant, which extracts the actual gold and silver.
Gary Little Construction is the turnkey contractor for the workshop warehouse, assay laboratory,
and Merill-Crowe plant.14 Guinn Corporation15 is the contractor for the earthworks. Terra Nova
Technologies (TNT) is the turnkey contractor for the stacking and conveying work.16 A-C
Electric Company17 is the contractor for electrical work. Turnkey Processing Solutions18 (TPS)
is the contractor for the crushing screening plant. Kappes Cassidy and Associates (KCA) has
contracts for procurement of materials for the Merrill-Crowe plant.19
The uncontradicted and fully credited testimony of Klingmann was that each contractor
was responsible for having its own manager employees, equipment, materials, and supplies that
are needed for construction, that the Employer did not supervise any of the contractors’
employees on the construction site, including setting work schedules or terms and conditions of
employment. Moreover, Klingmann testified that the Employer has not chosen subcontractors
of the above-turnkey contractors.
Klingmann’s testimony is corroborated by the terms of the various turnkey contracts.
Thus, the Gary Little Construction contract20 provides at article 2.1 that Little is responsible for
furnishing, “all labor, services, equipment, materials, tools, consumables, temporary facilities
and temporary utilities necessary to construct and complete the project . . . .” Under article 5.6
supervision and labor, the construction contract states: “Contractor will at all times furnish
adequate quantities of qualified supervision and labor to maintain the progress of the Work.
Contractor will at all times have a qualified superintendent present at the Work site . . . .
Contractor shall be exclusively responsible for the means and methods of constructing the
Work.” 21
In addition Little’s contract to build the assay laboratory provides at article 2.1 that Little
must, “furnish all labor, services, equipment, materials, tools, consumables, temporary facilities

14 GC Exhs. 12, 13 and 27.
15 GC Exh. 14.
16 GC Exh.15.
17 GC Exh.11.
18 GC Exh.29.
19 GC Exhs. 28-29.
20 GC Exh.12.
21 Ibid.
JD(SF)–47–15
5
10
15
20
25
30
35
40
45
50
9
and temporary utilities necessary to construct and complete the [Assay Laboratory].”22 The
supervision and labor provision is the same as in Little’s other contract above.23
The Little contract for construction of the Merrill-Crowe plant provides under “ARTICLE
2-SCOPE OF WORK” that Little must “furnish all labor, services, equipment, materials, tools,
consumables, temporary facilities and temporary utilities necessary to construct and complete
the project . . . .”24 The construction contract also contains a supervision and labor provision
under “ARTICLE 5-CONTRACTOR’S RESPONSIBILITIES” subparagraph 5.6 that states Little
must “furnish adequate quantities of qualified supervision and labor to maintain the progress of
the Work. Contractor will at all times have a qualified superintendent present at the Work site
with authority to act on behalf and to bind Contractor. Contractor shall be exclusively
responsible for the means and methods for constructing the Work.”25
There are similar contract provisions for Little’s construction of the fuel storage facility26
and the guard shack and swing gate at the Soledad Project.27
Guinn Corporation’s master service agreement for earthmoving provides at section D,
paragraph 2.29 that the Employer “has no control over the manner, method, or details of [Guinn
Corporation’s] performance.”28 It further provides at paragraph 2.30 that Guinn Corporation
must furnish, “all necessary personnel, equipment, materials, tools, supplies, expertise, and
supervision reasonably necessary for the services.”29
The TNT contract provides at article 2.1 that it must “furnish all professional design and
engineering services, and all labor, services, equipment, materials, tools, consumables,
temporary facilities and temporary utilities necessary to engineer, procure, construct and
commission the Conveying and Stacking System . . . .”30 Like the other turnkey contracts, this
contract also contains a supervision and labor provision at article 5.7 which provides that TNT
must, “furnish adequate quantities of qualified supervision and labor,” must “at all times have a
qualified superintendent present at the Work site,” and that TNT is “exclusively responsible for
the means and methods for constructing the Work.”31
The master service agreement with A-C Electric at paragraph 2.29, states A-C Electric,
“is [Employer’s] independent contractor . . . . [Employer] shall designate the services it desires,
but [A-C Electric] shall decide how such services shall be performed. [Employer] is interested
only in the results obtained, and has no control over the manner, method, or details of [A-C

22 GC Exh.13.
23 Ibid.
24 GC Exh.27.
25 Ibid.
26 R Exh.25.
27 R Exh.27.
28 GC Exh.14.
29 Ibid.
30 GC Exh.15.
31 Ibid.
JD(SF)–47–15
5
10
15
20
25
30
35
40
45
50
10
Electric’s] performance.”32 Further, at paragraph 2.30, the master services agreement states
that A-C Electric must “furnish all necessary personnel, equipment, materials, tools, supplies,
expertise, and supervision reasonable necessary for the services.”33
The KCA supply contract, under “ARTICLE 2-SCOPE OF WORK” states that “[KCA]
WILL . . . furnish all labor, services, equipment, [and] materials . . .”34 necessary for the Merrill-
Crowe plant.
The TPS contract to construct the crushing and screening plant, provides under
ARTICLE 2-SCOPE OF WORK, provides that TPS must “furnish all labor, services, equipment,
materials, tools, consumables, temporary facilities and temporary utilities necessary to engineer,
procure, construct, commission and complete the [crushing-screening plant] . . . .”35 The TPS
contract also contains the standard “Supervision and Labor” provision under “ARTICLE 5-
CONTRACTOR’S RESPONSIBILITIES” subparagraph 5.8. Furthermore, the contract provides
at subparagraph 5.3, “Contractor’s Status that TPS is an independent contractor . . . Nothing . . .
shall be construed to create an employment relationship between [the Employer] and employee
of [TPS] or [TPS’s subcontractors and suppliers of any tier.”36
As noted above, there is no credible evidence that the Employer told a union
representative that it intended to contract with subcontractors on the Soledad Project. This is
supported by evidence that turnkey contractors hired subcontractors for the Soledad Project
without the Employer’s approval.
For example, TPS hired separate subcontractors to perform electrical, installation,
mechanical, and concrete work. Guinn Corporation hired one subcontractor for the heap leach
facility, another subcontractor for the crushing and screening plant, three subcontractors for the
pump box, another subcontractor for the water system, two subcontractors for the Hilfiker
retaining wall, another subcontractor for the earth work for the asphalt installation, and another
subcontractor for the electrical work in the parking lot. Gary Little Construction hired five
separate subcontractors for the workshop warehouse’s construction, four separate
subcontractors for the Assay Laboratory, a subcontractor for the fuel storage area, another
subcontractor for the guard shack, and 1- subcontractors for the Merrill-Crowe building. KCA
hired three subcontractors and A-C Electric hired two subcontractors. There is no evidence
that the Employer was involved in choosing any of the subcontractors performing construction
work on site but the evidence shows it left the selection of subcontractors entirely to the turnkey
contractors.
Under both the Guinn Corporation37 and the A-C Electric master services agreements38
no scope of work is described nor do those contracts give the contractors the exclusive right to
perform any given scope of work. Paragraph 1.2 of the Guinn and A-C Electric master service
agreements cited above, provide that "This Agreement does not obligate Company [Employer]

32 GC Exh.11.
33 Ibid.
34 GC Exh.28.
35 GC Exh.29.
36 Ibid.
37 GC Exh.14.
38 GC Exh.11.
JD(SF)–47–15
5
10
15
20
25
30
35
40
45
50
11
to order services, materials or equipment nor does it obligate Contractor to accept services
orders or any other orders."
The record reflects that under the Guinn master services agreement, the Employer
issued approximately 20 “Notices to Proceed”39, each for a separate and distinct scope of work,
or portion of the Soledad Project, to be performed by Guinn. In its brief, Respondent cites
Klingmann’s testimony concerning the Employer’s supervision of Guinn on the Project, "So
Guinn was a really actively involved in the project under our direct control and management
long before we actually decided to proceed with the project."40 However, Klingmann
immediately explained, “I do not supervise Guinn’s work. Totally independent management
team on site.” [sic]41
The Employer removed certain scopes of work that it had initially awarded to one
contractor and then later gave it to a different contractor. Gary Little Construction was originally
to provide a septic system under the turnkey contract for the workshop warehouse. This work
was later given to Guinn Construction. 42
While the evidence reflects that the Employer retained control of which work to award
under the various contracts, both Klingmann’s testimony and the language of the turnkey
contracts reflects that the Employer had no role in directing or supervising these contractors or
their subcontractors.
As noted above, the record reflects that the Employer has no experience in construction.
While the record fails to establish that the Employer supervises the activities of the general
turnkey contractors at the mine project, it does reflect that it coordinates the activities of the
contractors and ensures that the turnkey contracts proceed according to their terms.
3. The plant operations manager
Since about April 2014, the Employer has employed Joe Balas (Balas) as plant
operations manager. Balas reports directly to Klingman. Balas’ duties include coordinating the
activities of the turnkey contractors. Once the mine is completed, Balas will be in charge of
operating the mine. While Balas has had 26 years of experience in the mining and processing
business, he has had no experience in construction work. The record reflects that Balas does
not interact with the subcontractors on the Project. Although the Employer may become aware
of issues that may arise between a contractor and one the contractor’s subcontractors, the
decision as to how to proceed with the issue rests solely with the contractor. Thus, one of
Guinn’s subcontractors got its excavator tangled in overhead power lines. Guinn terminated its
contract with this subcontractor. The Employer had no involvement in the decision to terminate.
A TPS subcontractor was not following the TPS contract and TPS terminated its contract with
the subcontractor. While the record reflects that Balas had conversations with TPS about the
incident Balas made no recommendation to TPS about terminating the sub.
Balas’ and Klingmann’s testimony about Balas connection with the contractors and
subcontractors on the jobsite is consistent with the job description for plant operations

39 R Exhs.12–16, 18–21, 23, 24, 26, and 28.
40 Tr. at 300, LL. 8–10.
41 Tr. at 301, LL. 5–6.
42 R. Exh. 18.
JD(SF)–47–15
5
10
15
20
25
30
35
40
45
50
12
manager.43 The preamble in the job description notes that “The Manager—Plant Operations
will coordinate construction starting with the workshop-warehouse which is now under way.” In
the job description under “Responsibilities” the only mention of construction is, “Oversee the
final design, coordinate with contractors during construction. . . .”44 At page 2 of the job
description under “Requirements” experience in mining is required, no experience in
construction is set forth.
While Klingmann testified that Employer never purchased equipment or materials for the
Project, he later admitted the Employer purchased e-houses, medium voltage transformer,
service entrance panel, and revenue metering unit, rain shields at e-houses, a water well pump
station, a meter switch board for the water supply infrastructure, a motor control center, an
electrical house for PW-1, as well as the high pressure grinding roll for the crushing and
screening plant.
The Employer currently employs about 23 employees45 including an assay laboratory
technician and supervisor, a plant operations supervisor, a plant operations manager, mining
equipment operators and supervisors, mechanics, and a surveyor. By the end of 2015, the
Employer plans to hire approximately 100 employees, 72 of whom will be employed in mining.
None of these employees perform construction work on the Project. Only plant operations
supervisor William Andrews and surveyor Brent Wilkins have any regular interactions with the
contractors on the jobsite. Andrews’ establishes the progress of the various components of the
project while Wilkins insures that the locations of various project building is correct.
4. The reaffirmation of the PLA
By letter dated August 29, 201346, Respondent’s executive secretary, John Spaulding,
advised Klingmann that the Employer had signed a PLA covering the project requiring all
contractors and subcontractors to be signatory to the PLA. By letter, dated
September 17, 2013,47 Spaulding told Klingmann that it appeared that contractors or
subcontractors working on the project had not signed the PLA. By letter, dated
September 20, 2013,48 Klingmann advised Spaulding that the PLA had lapsed.
From the fall of 2013 to early 2014, the parties engaged in settlement negotiations that
ultimately bore no fruit.
On March 20, 2014, Respondent rejected the employer’s February 19, 2014 settlement
offer proposal and stated it wished to proceed to step 2 of the grievance procedure regarding
the PLA or alternatively to proceed to arbitration. 49 .

43 GC Exh. 25.
44 Ibid.
45 GC Exh.24.
46 GC Exh.16.
47 GC Exh.17.
48 GC Exh.18.
49 GC Exh.21.
JD(SF)–47–15
5
10
15
20
25
30
35
40
45
50
13
After the Employer rejected a further settlement proposal by Respondent,
on May 13, 2014, it notified the Employer that it wished to proceed to arbitration under article 8,
section 8.3 step 3(a) of the PLA.50
C. The Analysis
1. The 8(e) proviso
Section 8(e) of the Act provides in pertinent part:
It shall be an unfair labor practice for any labor organization and any employer to
enter into any contract or agreement, express or implied, whereby such employer
ceases or refrains or agrees to cease or refrain from handling, using, selling,
transporting or otherwise dealing in any of the products of any other employer, or
cease doing business with any other person . . . Provided, that nothing in this
subsection (e) shall apply to an agreement between a labor organization and an
employer in the construction industry relating to the contracting or subcontracting
of work to be done at the site of the construction, alteration, painting, or repair of
a building, structure or other work . . . .
There is no dispute that the subcontracting provisions of the PLA (sections. 5.1 and 5.2)
herein fall within the prohibition of Section 8(e) of the Act as they require the Employer to cease
doing business with any person not signatory to the PLA or to a multi-employer collective
bargaining agreement with one or more of the Unions. Carpenters Local 944 (Woelke &
Romero Framing, Inc.), 239 NLRB 241 (1978). Thus, the initial inquiry in this case is to
determine if the PLA falls within the proviso to Section 8(e) because the Employer is an
employer in the construction industry. Respondent has the burden of proving the subcontracting
language in the PLA is protected under construction industry proviso in Section 8(e) set forth
above. Carpenters Local 623 (Atlantic Exposition Services), 335 NLRB 586, 586 (2001).
2. The Employer’s status as a construction industry employer
The Law
In Carpenters Local 743 (Longs Drug), 278 NLRB 440, 442 (1986), held that whether an
employer is an employer in the construction industry within the meaning of the first proviso of
Section 8(e) of the Act, depends on the facts of each case. The burden is on the party asserting
the defense to prove the employer’s construction industry status. Carpenters Chicago Council
(Polk Bros.), 275 NLRB 294, 296 (1985).
In Glen Falls Building & Construction Council (Indeck Energy), 325 NLRB 1084, 1087
(1998), the Board noted that the resolution of the term construction industry employer within the
meaning of the first 8(e) proviso ‘‘is dependent on the degree of control over the construction-
site labor relations.”
In Los Angeles Building & Construction Trades Council (Church's Fried Chicken), 183
NLRB 1037 (1970), the Board found that an employer engaged primarily in the retail food
business was engaged in the construction industry because it acted as its own general

50 GC Exh.23.
JD(SF)–47–15
5
10
15
20
25
30
35
40
45
50
14
contractor in the construction of its own retail stores and thereby necessarily retained control
over its subcontractor's labor relations.
However, in Columbus Building & Construction Trades Council (Kroger Co.), 149 NLRB
1224 (1964), the Board concluded that while Kroger, a retail food store, completed some work
on store site built by a general contractor that Kroger was an operator of a chain of retail stores
and was not, under the circumstances of the case, an employer engaged in the construction
industry.
In Church's Fried Chicken, supra at 1037, the Board noted that where an employer hires
a general contractor but regularly makes decisions, including the selection of subcontractors,
the employer retains such control and is tantamount to being the general contractor.
In Longs Drug, supra at 442, the Board held that where an employer does not act as its
own general contractor, it will be held to be an employer in the construction industry under the
8(e) proviso if it retains control of the labor relations at the project, including such factors as
choosing or supervising the subcontractors at the site. However, the Board also noted that an
employer’s visits to the jobsite to insure work was being performed in compliance with the plans
and specifications of a contract would not bring an employer within the meaning of the first
proviso to Section 8(e) of the Act. Longs, supra at 442. Carpenters (Rowley-Schlimgen), 318
NLRB 714, 716 (1995), was an example of where an employer who did not directly employ
carpet installers at a jobsite was found to be a construction industry employer because it
retained sufficient control over the subcontractor through its own employee who supervised the
subcontractor’s employees.
3. Discussion
The testimony in this case from both Graeme and Klingmann is undisputed that the
Employer from 1996 to the present never intended to nor in fact acted as a general contractor.
Contrary to the statement in section 1.5 of the PLA that the Employer represented that was an
employer in the building and construction and would persons in the building and constructions
trades in Project, the evidence reflects that at the outset of the Soledad Project, the Employer
intended to hire an EPCM general contractor to construct the mine. The plan to use an EPCM
contractor, called for in the March 1998 M3 Engineering feasibility report, was never
implemented due to economic issues. When the project was reinstated in 2001 by Klingmann it
is clear that the Employer changed from using one general contractor to using a series of
turnkey contractors for discreet portions of building the mine. There is not a scintilla of evidence
that the Employer retained control over the labor relations of the turnkey contractors or their
subcontractors by supervising them, selecting the subs or directing their work in any way.
Klingmann’s testimony in this regard is consistent with the language in the form contracts of
each of the turnkey contractors which specify that the contractors are responsible for all labor,
services, equipment and will at all times furnish adequate quantities of qualified supervision and
labor to maintain the progress of the work.
Respondent cites examples of notices to proceed from the Employer to various
turnkey contractors to suggest that it is a construction-industry employer. The notices to
proceed give the contractors permission to go forward with work and do not evidence the
Employer’s control of the manner or means of the contractor’s performance or control
over jobsite labor relations.
Respondent also argues that Balas, the Employer's manager of plant operations, was
responsible for the coordination of the construction of the turnkey project and his involvement
JD(SF)–47–15
5
10
15
20
25
30
35
40
45
50
15
was tantamount to being a general contractor as in Rowley-Schlimgen and Church's Fried
Chicken, supra. Balas duties are limited to coordinating the activities of the turnkey contractors.
On a day-to-day basis, Balas checks with the various contractors’ project managers about the
rate of progress on construction or budget issues. However, these are very short
conversations, lasting just a few minutes on average. He has no contact with subcontractors.
Although Balas may become aware of issues that between a contractor and the contractor’s
subcontractors, any decision as to how the work should be performed rests solely with the
contractor. Balas holds once a week safety meetings with the turnkey contractors and learns
what the contractors will be working on that wee. While Balas has 26 years of experience in the
mining business, he has no experience in construction work. He is an unlikely choice for a
general construction contractor. None of this evidence suggests that the Employer, through
Balas, acts as its own general contractor as in Rowley-Schlimgen or Church's Fried Chicken,
supra. Balas’ duties are similar to the employer’s visits to the jobsite to insure work was being
performed in compliance with the plans and specifications of a contract in Longs supra at 442
where the Board found the employer’s visits were not tantamount to functioning as a general
contractor.
Respondent next argues that since the Employer purchased materials and equipment
including e-houses, medium voltage transformers, service entrance panels, revenue metering
units, rain shields at e-houses, a water well pump station, a meter switch board for the water
supply infrastructure, a motor control center, an electrical house for PW-1 as well as the high
pressure grinding roll for the crushing and screening plant for its contractors to install and use in
the construction of its Project it is a construction employer within the meaning of Section 8(e) of
the Act.
That the Employer purchased materials and equipment to be installed on its project,
does not establish that it in any way controlled the manner or means of performance of the
contractors and subcontractors or supervised them in a manner that reflects it controlled the
labor relations on its project.
4. The 10(b) defense
In its answer Respondent contends that the allegations of the complaint are barred by
the statute of limitations. Section 10(b) provides that “no complaint shall issue based upon any
unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board
and the service of a copy thereof upon the person against whom such charge is made . . . .”
A contract that falls afoul of Section 8(e) of the Act must be entered into within the 10(b)
period to violate the Act. Where the original contract is beyond the 10(b) period, later
reaffirmation of the agreement, including seeking contract enforcement through the grievance
and arbitration procedure, is considered as entering into for the purposes of Section 8(e).
Teamsters Local 277 (J & J Farms Creamery), 335 NLRB 1031, 1031(2001); Carpenters
(Novinger’s, Inc.), 337 NLRB 1030, 2030 (2002); Carpenters Local 1149, 221 NLRB 456, 456
fn. 2 (1975); Dan McKinney Co., 137 NLRB 649, 653–657 (1962).
The charge was filed on May 30, 2014 and a copy served on Respondent on that date.
While the PLA herein was entered into outside the 10(b) period in 1997, the parties have
stipulated that Respondent reaffirmed the PLA on about May 13, 2014, when it requested
arbitration of a grievance alleging that the Employer had failed to comply with provisions of the
PLA. I find that the PLA was reaffirmed by Respondent on or about May 13, 2014, and thus I
find no merit to Respondent’s 10(b) defense.
JD(SF)–47–15
5
10
15
20
25
30
35
40
45
50
16
5. Estoppel defense
Respondent takes the position that the Employer should be estopped from denying that
it did not hire employees to perform project work and that it is therefore a construction industry
employer for 8(e) purposes. Respondent argues and cites in support of its estoppel argument a
line of Board cases including Alpha Associates (Unite), 344 NLRB 782 (2005), R.P.C., Inc., 311
NLRB 232 (1993), Red Coats, 328 NLRB 205, 206 (1999), and Verizon Information Services
(CWA), 335 NLRB 558 (2001). In this narrow line of cases involving withdrawal of recognition
based upon a Union merger issue two years prior, the untimely challenge of a voluntary
recognition, and an RC petition filed contrary to a Union’s agreement, the Board held that in
these narrow circumstances estoppel may apply. The facts of those cases are inapposite here.
However in Longs, supra at 442–443, a case on all fours with the instant case, the Board
held:
Nevertheless, the Respondents assert that the Employer, having entered into an
agreement that it would hire only union contractors, should not be permitted to
absolve itself of this contractual duty, and should be estopped from contesting its
status as an employer in the construction industry; and that this is particularly as
the Respondents, in reliance on the Employer's contractual commitments over
the years, have furnished carpenters, on request, through their various hiring
halls. I similarly find this argument of Respondents to be without merit,
particularly as there is no showing that the current or prior contracts were entered
into with the mutual understanding that the Employer would act as its own
general contractor or would hire only union general contractors.
Here, like in Longs, supra, there is insufficient evidence to establish that the PLA was
entered into by the parties with the mutual understanding that the Employer would act as its own
general contractor or hire only union contractors. While this may have been the intent of
Respondent, the evidence reflects that at all times the Employer planned to hire either an ECPM
contractor or turnkey contractors. The record further shows that it was the Employer’s fear of
the local unions disrupting the mine permitting process that motivated the Employer’s signature
of the PLA. Thus the element of mutuality is missing from this case. Since Respondent has
failed to establish that there was a mutual understanding between it and the Employer that the
Employer would act as its own general contractor, Respondent’s estoppel defense is rejected.
Similarly Respondent’s reliance on Orange Belt District Council of Painters No. 48,
(Maloney Specialties, Inc.), 276 NLRB 1372 (1985), is misplaced. The facts and holding in
Maloney are unlike the circumstances herein. In Maloney, neither the definition of a
construction industry employer nor estoppel was implicated.
Based on the above, I find that the Employer is not now and since at least 1996 has not
been a construction industry employer within the meaning of the first proviso to Section 8(e) of
the Act. Having so found, the PLA is not protected by the first proviso to Section 8(e) of the Act
and violates the Act as alleged in the complaint.
Having so found, it is not necessary to reach the additional nonstatutory requirements for
proviso agreements, that the PLA was negotiated in the context of a collective-bargaining
relationship or the common-situs issues suggested by dicta in Connell Construction Co. v.
Plumbers & Steamfitters Local 100, 421 U.S. 616 (1975) but not passed on by the Board.
JD(SF)–47–15
5
10
15
20
25
30
35
40
45
50
17
CONCLUSIONS OF LAW
1. Golden Queen Mining, LLC. is engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(e) of the Act by entering into and enforcing an
agreement requiring Golden Queen Mining, LLC. to hire only union contractors or union
subcontractors for its construction projects, and by applying those contractual provisions to a
construction site where Golden Queen Mining, LLC is not an employer in the construction
industry within the meaning of the first proviso to Section 8(e) of the Act.
4. The aforesaid unfair labor practice affects commerce as defined in Section 2 of the
Act.
THE REMEDY
Having found that the Respondents violated the Act, I recommend they be ordered to
cease and desist therefrom and take certain affirmative action designed to effectuate the
purposes of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended.51
ORDER
The Respondent, Kern, Inyo and Mono Counties Building and Construction Trades
Council, Bakersfield, California, its officers, agents, and representatives, shall
1. Cease and desist from entering into, maintaining, giving effect to or enforcing those
provisions of our August 20, 1997 PLA with Golden Queen Mining LLC to the extent found
unlawful.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Seek dismissal of the May 13, 2014 request for arbitration under article 8, section
8.3, Step 3(a) of the PLA.
(b) Within 14 days after service by the Region, post at their offices, meeting halls, and
locations where notices to their members are customarily posted, copies of the
attached notice marked “Appendix."52 Copies of the notice, on forms provided by the
Regional Director for Region 31, after being signed by authorized representatives

51 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
52 If this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice
reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board."
JD(SF)–47–15
5
10
15
20
25
30
35
40
45
50
18
shall be posted by the Respondent immediately after receipt and maintained for 60
consecutive days thereafter, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps shall be taken to
ensure those notices are not altered, defaced, or covered by any other material.
(c) Within 21 days after service by the Region, file with the Regional Director in a sworn
certificate of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken.
Dated, Washington, D.C. December 7, 2015

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT enter into, reaffirm, maintain, or give effect to our August 20, 1997 PLA with
Golden Queen Mining LLC.
WE WILL seek dismissal of our May 13, 2014, request for arbitration under Article 8, section 8.3
Step 3(a) of the PLA.
Kern, Inyo and Mono Counties Building and
Construction Trades Council
(Labor Organization)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
11150 West Olympic Boulevard, Suite 700
Los Angeles, California 90064-1824
Hours: 8:30 a.m. to 5 p.m.
310-235-7352
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/31-CE-129697 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 310-235-7123.