Diponia Construction Co.

National Labor Relations Board - Administrative Judge Opinions

Sep 17, 2010

07-CA-052281 (N.L.R.B. Sep. 17, 2010)

JD(ATL)–19–10
Trenton, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
DIPONIO CONSTRUCTION COMPANY, INC.
and Case 7-CA-52281
LOCAL 9, INTERNATIONAL UNION OF
BRICKLAYERS AND ALLIED CRAFTWORKERS,
AFL-CIO
Ingrid L. Kock, Esq. and Robert G. Walkowiak, Esq.,
for the General Counsel.
Steven A. Wright, Esq. and Kelly Kammer, Esq., for the
Respondent.
John G. Adam, Esq., for the Charging Party.
DECISION
Statement of the Case
MARGARET G. BRAKEBUSCH, Administrative Law Judge. This case was tried in Detroit,
Michigan, on June 9, 2010. The charge was filed by Local 9, International Union of
Bricklayers and Allied Craftworkers, AFL–CIO (Local 91) on July 31, 2009. Based upon the
allegations contained in the charge, the Regional Director for Region 7 of the National Labor
Relations Board (the Board), issued a complaint and notice of hearing on February 16, 2010.
The complaint alleges that since July 14, 2009, and since August 5, 2009, DiPonio
Construction Company, Inc. (the Respondent) has failed and refused to provide Local 9 with
requested information in violation of Section 8(a)(1) and (5). The complaint also alleges that
on July 31, 2009, the Respondent withdrew its recognition of Local 9 as the exclusive
bargaining representative of its employees in violation of Section 8(a)(1) and (5) of the Act.
Finally, the complaint alleges that on about July 29, 2009, Respondent informed Local 9, in
writing, that it was not required to bargain a new contract and would not do so. The
complaint alleges that in doing so, Respondent further violated Section 8(a)(1) and (5) of the
Act.
On the entire record,2 including my observation of the demeanor of the witnesses,

1 Local 9 may also be designated as the Union in certain portions of this decision.
2 During the hearing, Respondent sought to introduce correspondence that was generated by
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and after considering the briefs filed by the General Counsel and Respondent, I make the
following:
Findings of Fact
I. Jurisdiction
Respondent, a Michigan corporation, with an office and facility in Trenton, Michigan,
has been engaged as a masonry contractor in the construction industry doing commercial
construction. During the calendar year of 2009, Respondent derived gross revenues in
excess of $1 million and purchased and received at its Trenton facility goods and materials
valued in excess of $50,000 directly from points outside the State of Michigan. By written
stipulation, Respondent admits, and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7). Respondent further admits, and I find that Local 9
has been a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Issues
Section 9(a) of the National Labor Relations Act (the Act) provides that a labor
organization designated or selected for the purposes of collective bargaining by a majority of
the employees in an appropriate unit is the exclusive collective-bargaining representative of
all of the unit employees. 29 U.S.C. § 159 (a). In the usual employer-union relationship, the
employer is bound to bargain with the exclusive representative even after a collective-
bargaining agreement has expired. Additionally, recognition of the union can only be
withdrawn if the employer has a reasonable, good-faith belief that the union does not
represent a majority of the employees. Levitz Furniture Co., 333 NLRB 717 (2001). Section
8(f) of the Act, however, provides that an employer engaged primarily in the building and
construction industry may enter into an agreement with a labor organization covering its
employees without the union’s demonstrating that it represents a majority of the employees
as established under Section 9(a). 29 U.S. C. § 158 (f). Unlike a bargaining relationship
within the meaning of Section 9(a) of the Act, an 8(f) relationship may be terminated by either
the labor organization or the employer at the expiration of a collective-bargaining agreement.
John Deklewa & Sons, 282 NLRB 1375, 1386–1387 (1987), enfd. 843 F.2d 770 (3rd Cir.
1988), cert. denied 488 U.S. 889 (1988). The ultimate issue in this case is whether the
Respondent is an 8(f) contractor or a 9(a) contractor within the meaning of the Act.
Respondent asserts that it had an 8(f) relationship with Local 9 and the General Counsel
asserts that Respondent had a 9(a) relationship with Local 9. If it is established that the
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the parties in May and June 2010 and just prior to the unfair labor practice proceeding.
Respondent submits that the documents related to the parties’ settlement discussions and
correspondence concerning the negotiation of a new contract. Respondent asserts that the
documents are relevant. Prior to the opening of this hearing, the parties took the opportunity
to discuss settlement and the possible resolution of this matter. Despite their discussions, the
parties were unable to reach a resolution and the hearing continued. Inasmuch as there was
no resolution of this matter prior to the hearing, I found the May and June 2010
correspondence offered by the Respondent to be irrelevant to the matters before me.
Accordingly, R. exhs. 26 through 33 were not received into evidence and are attached to the
record as rejected exhibits.
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Respondent and the Union have a 9(a) bargaining relationship, the issue then becomes
whether the Respondent unlawfully (1) failed to provide information to the Union, (2)
withdrew recognition of the Union, and (3) refused to bargain for a new contract with the
Union.
B. Factual Evidence Presented
1. Background
Local 9 is a labor organization that represents construction masons, including
bricklayers and cement masons and its geographical jurisdiction covers all of the State of
Michigan except for the five countries comprising the Detroit metropolitan area. Local 1,
International Union of Bricklayers and Allied Craftworkers, AFL–CIO (Local 1) generally
covers the Detroit metropolitan area. Nelson McMath is Local 9’s current president and also
serves as a trustee for the Union’s fringe benefit funds. The parties stipulated that the
Mason Contractors’ Association (MCA) has been at all material times an organization
composed of employers engaged in the construction industry, one purpose of which is to
represent employer-members in negotiating and administering collective–bargaining
agreements with various labor organization. Local 9 is one of those labor organizations.
2. Bargaining history
Louis DiPonio, Jr. is Respondent’s owner and has served as the corporation’s
president since 1999. Mathew DiPonio is Louis DiPonio’s brother and he has been
Respondent’s vice president since 1999. There is no dispute that Respondent has had a
collective-bargaining relationship with Local 9 since the 1970’s. Although there is no record
testimony concerning the date or circumstances of the initial collective-bargaining
agreement, the record reflects that Louis DiPonio’s deceased father signed the initial
collective-bargaining agreement. Louis DiPonio also confirmed that for the past 20 years,
Respondent has employed only bricklayers who were either members of Local 9 or Local 1.
There is no dispute that despite the bargaining relationship between Local 9 and
Respondent, Local 9 was never certified by the Board as the exclusive collective-bargaining
representative of Respondent’s employees.
On August 2, 2001, Respondent’s vice president, Mathew DiPonio, signed a power of
attorney authorizing the MCA to negotiate a wage agreement with Local 9 on the
Respondent’s behalf. The document provides that Respondent “ratifies, confirms, and
approves all prior acts of the Mason Contractor’s Association, Inc., in the negotiating and
signing of collective bargaining agreements” with Local 9. The power of attorney also
provides that the authorization granted to the MCA would remain in full force and effect until
revocation by written notice or by the termination of Respondent’s membership from the
MCA. On December 14, 2001, Mathew DiPonio, signed another, identically worded power of
attorney authorizing the MCA to negotiate a wage agreement with the Union on the
Respondent’s behalf. Respondent does not dispute that as an employer-member of the
MCA, Respondent authorized the MCA to represent it in negotiating and administering
collective-bargaining agreements with the Union.
The collective-bargaining agreement between the Union and the MCA that was in
effect from June 22, 2000, through August 1, 2003, provides the following in Article VI,
Section D. subsection 1:
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The Union has submitted to the Employer evidence of majority support, and
the Employer is satisfied that the Union represents a majority of the
Employer’s Employees in the bargaining unit described in the current
collective bargaining agreement between the Union and the Employer.
Subsection 2 of section D provides:
The Employer therefore voluntarily agrees to recognize the Union as the
exclusive bargaining representative of all Employees in the contractually
described bargaining unit on all present and future jobsites within the
jurisdiction of the Union, unless and until such time the Union loses its status
as the Employer’s Exclusive representative as a result of an NLRB election
requested by the Employees.
Subsection 3 further provides:
The Employer and the Union acknowledge that they have a 9(a) relationship
as defined under the National Labor Relations Act and that this Recognition
Agreement confirms the on-going obligation of both parties to engage in
collective bargaining in good faith.
The bargaining unit identified in the collective-bargaining agreement (CBA) includes all full-
time and regular part-time journeymen, apprentices, and support employees who historically
or traditionally perform work assigned to bricklayers and cement masons within Local 9’s
territorial jurisdiction.
Since the negotiation of the agreement that was reached in 2000, Local 9 and the
MCA have negotiated two additional CBA’s for the relevant time period. On August 1, 2003,
Local 9 and the MCA negotiated a successor CBA, effective from August 1, 2003, to August
1, 2006. This CBA was followed by a successor agreement, effective from August 1, 2006,
to July 31, 2009. Both of the successor agreements contain the same language identified
above in subsections 1, 2, and 3 of Section D in Article VI. Respondent remained a member
of the MCA during the time period when the CBA’s were negotiated and executed.
McMath was a member of Local 9’s negotiating committee for the negotiation of the
2000 to 2003 CBA. McMath could not recall when the negotiations were completed. He
agreed on cross-examination that it was not unreasonable that the negotiations could have
been completed by July 1, 2000. McMath confirmed that he did not personally submit any
evidence of majority support as referenced in Article VI of the contract and he was unaware
of anyone else with the Union who did so. Respondent’s president Louis DiPonio testified
that at no time did he have any discussions with anyone in the Union about the majority
status 9(a) language in the contract and at no time did the Union ever show him or offer to
show him that the Union gained majority status. Louis DiPonio also acknowledged that
during the existence of the labor agreements between 2000 and 2009, he was unaware that
the Respondent ever told the Union that the agreements were wrong and that the Union was
not a 9(a) representative.
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3. Correspondence between the parties in May through August 2009
On May 21, 2009, McMath sent a letter to Respondent, confirming the Union’s desire
and intent to “change, alter, and amend” the current collective-bargaining agreement (CBA)
involving a number of issues including wages, pension, health care, working conditions,
apprenticeship, and training. McMath explained in the letter that he was hopeful that this
would be accomplished prior to July 31, 2009. McMath identified the letter as the cover letter
accompanying the mediation notice that is normally sent prior to the termination of a CBA.
The attached notification to the Mediation Agency was dated May 27, 2009. McMath does
not dispute that the May 21 letter and the attachment were not sent until after May 27, 2009.
On June 1, 2009, McMath received a letter from Respondent’s legal counsel Steven
A. Wright (Wright) and Kelly M. Kammer (Kammer), informing the Union of Respondent’s
legal representation and attaching a letter from Louis DiPonio dated May 26, 2009. McMath
could not recall whether or not he also received a faxed copy of the May 26, 2009 letter on
May 26. McMath does not dispute that the Union’s office manager signed for the receipt of
the letter by certified mail on May 27, 2009. In his letter, Louis DiPonio confirmed that
Respondent would not renew its contract with the Union upon the expiration of the contract
term on July 31, 2009, and that Respondent was terminating its union contract effective July
31, 2009. Louis DiPonio further stated in the letter that the termination was timely and in
accordance with the agreement between the Union and the MCA and that Respondent would
no longer be a signatory with the Union effective July 31, 2009.
On July 14, 2009, the Union’s counsel, John Adam (Adam), sent a letter to
Respondent’s counsel requesting information. Specifically in his letter, Adam listed 10
separate items of information for which he requested a response. Adam also included in the
letter: “We represent BAC Local 9. Your June 1 letter to Nelson McMath states that in view
of DiPonio’s May 26 letter that McMath’s ‘letter of May 21, 2009 [is] irrelevant.’ Please
explain why it is ‘irrelevant’ that Mr. McMath seeks to meet and bargain.”
By letter dated July 15, 2009, Respondent’s counsel responded to Adam’s July 14,
2009 letter. In the letter signed by Kammer, Respondent’s counsel explained: “Mr. McMath’s
request to bargain is irrelevant because DiPonio Construction Co., Inc. (DiPonio) clearly set
forth in its May 26, 2009 letter that it is terminating its union contract effective July 31, 2009.
Accordingly, nothing in this letter shall be construed as an assent to bargain or a waiver of
the termination contained in the May 26, 2009 letter.” Kammer further explained that while
Respondent would not bargain with respect to a new agreement, Respondent was willing to
sit down with representatives of Local 9 and the MCA to discuss the best manner of winding
down the projects on which Respondent was currently performing work and any other
relevant issues.
In an email dated July 24, 2009, Adam responded to Kammer and Wright’s letter and
informed them that their letter of July 15, 2009, had not answered any of the requests for
information included in his July 14, 2009 letter. Adam stated that the July 15, 2009 response
constituted a refusal to bargain. Additionally, Adam inquired as to Respondent’s current
projects and what Respondent intended to do after July 31, 2009, with respect to terms and
conditions of employment if Respondent would not bargain with Local 9.
In an email on July 27, 2009, Kammer reiterated that Respondent was willing to sit
down and discuss specific jobs that would be affected by Respondent’s withdrawal and how
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to handle them after July 31, 2009. Kammer explained: “The information that you are
requesting will be provided at that meeting and any pertinent issues will be addressed at that
time. Accordingly, please provide your availability along with that of BAC Local 9 and
Masons Contractors Association representatives’, and we will schedule the meeting
immediately.”
The following day, Adam sent an email to Kammer stating: “BAC wants to bargain for
a new CBA and has requested information in my July 14 letter. DiPonio says it will not
bargain and will not provide the information I requested. You ‘offer’ to meet about
withdrawing from the union but will not tell me what projects DiPonio is working on. What
‘pertinent issues’ are to be discussed? And why now involve the MCA.”
On the following day, Kammer responded by email:
DiPonio has withdrawn from the MCA and has terminated its contract.
DiPonio is not required to bargain for a new contract and will not do so.
However, as of July 31, 2009, DiPonio will still be on jobs that it had started
while a signatory. For the sake of the union men, DiPonio believes that
arrangements should be made to finish these projects pursuant to some type
of project labor agreement. DiPonio will not sign a new contract and is no way
by the afore-mentioned suggestion in any way agreeing to enter into
negotiations for or to sign a new contract. If you don’t believe that it is in the
best interest of the union employees to sit down with us, then so be it. That is
your call. It would seem to us that given the state of the economy, that the
union employees would think that such a meeting may be beneficial to them.
Further, we will not waste time providing information that the union already
has. The union knows which projects DiPonio is working on and we will not
waste time. The ball is in your court. We either meet or not. At that meeting,
we will discuss specific projects and how they should be completed. It is your
call. We await your decision about a meeting. We will also leave it in your
hands as to whether the MCA should be involved. Finally, please note that we
will take seriously any interference with DiPonio’s on-going contracts.
Adam testified that despite Kammer’s assertions to the contrary, he did not know the
projects that Respondent was working on at that time. He said that Local 9 had “a good
idea,” but needed some verification from Respondent. On August 3, 2009, Adam notified
Kammer by email that he had filed an unfair labor practice charge against Respondent on
July 31, 2009. Adam informed Kammer that Respondent should maintain the terms and
conditions of the expired contract and its failure to do so would be viewed as an unlawful
unilateral change and subject to a claim for damages. Adam explained in the
correspondence that he was not aware of all the projects that Respondent was working on,
the number of employees, or the status of the projects and that Respondent should provide
the information as previously requested in his correspondence of July 14, 2009.
In his correspondence of August 3, 2009, Adam also referenced Kammer’s comment
about “interference” and “on-going contracts” in her email of July 29, 2009. He asked the
type of interference to which she was referring and he also asked what she had meant by
“on-going contracts.” Finally, he asked the status of Respondent’s collective-bargaining
agreement with Local 1 and asked for a copy of the agreement and copies of any letters sent
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by Respondent terminating the agreement with Local 1.
When Wright responded to Adam later that same day, he confirmed that he had
received a copy of the charge. He asserted that there is no duty to bargain with respect to
an 8(f) company and that Respondent’s termination of the contract can be “100% unilateral.”
Wright added that while Respondent is willing to finish current projects using union labor and
paying fringes, Respondent wanted to do so without the risk of anyone claiming that it had
waived the termination of the contract to which it was entitled under the contract. Wright
suggested that if the parties could sit down together they might be able to figure out how to
finish the projects without anyone waiving their respective arguments. Wright included: “We
will not be providing you information so that you can harass DiPonio, but we will certainly
agree to sit down and work out an appropriate arrangement, at which time we will provide the
information requested. Whether we meet, whether you get the information, and whether
Local 9 will benefit from finishing current DiPonio projects will depend on you.” Wright
reminded Adam that while Respondent was a signatory, it met all reporting obligations to the
union. Wright added: “Finally, so that it is clear, DiPonio is no longer a signatory to a Local 9
contract.”
When Adam responded to Wright on August 5, 2009, Adam contended that Wright’s
legal analysis was wrong and that Local 9’s request for information was not harassment.
Adam reiterated that Respondent had a legal duty to maintain the terms and conditions of the
collective-bargaining agreement and listed six requests for information that were described
under the heading “Additional Requests.”
Wright responded to Adam on August 5 and identified the positions taken by both
parties. Wright proposed that Respondent would be willing to perform to completion all
current projects on its books which are in Local 9’s jurisdiction under the terms of the expired
collective-bargaining agreement, on the condition that both Local 9 and the Funds
acknowledge that Respondent was not waiving its termination by such action and further
agrees to never argue that such action constituted such a waiver. In a response on August
24, 2009, Adam confirmed that Local 9 agreed that by honoring the terms of the collective-
bargaining agreement (CBA), Respondent was not waiving any of its defenses or arguments.
Adam opined that by following the CBA on the current or other projects, Respondent would
reduce its exposure to claims for damages. Adam also noted that as far as the Fund was
concerned, Local 9 was a separate and distinct entity from the fringe benefit funds.
Adam testified that despite the various email exchanges, Local 9 never received any
of the requested information.
C. Legal and Factual Conclusions
1. Whether the Respondent unlawfully withdrew recognition and unlawfully failed and
refused to bargain with Local 9
a. Distinguishing the 8(f) and 9(a) agreements
Under Sections 9(a) and 8(a)(5) of the Act, employers are obligated to bargain only
with unions that have been “designated or selected for the purposes of collective bargaining
by the majority of the employees in a unit appropriate for such purposes.” 29 U.S.C. §159
(a). There is, however, an exception to this majority support requirement for the construction
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industry. Under this exception, an employer may sign a “pre-hire” agreement with a union
regardless of whether a majority of the employees supported the union’s representation. 29
U.S.C. §158(f). This exception adapts the law to conform to the unique nature of the
construction industry. In the construction industry, employers need to draw from a pool of
skilled workers and to know their labor costs up front in order to generate accurate bids.
Additionally, union organizing campaigns in the construction industry are complicated by the
fact that employees frequently work for multiple companies over short, sporadic periods.
International Association of Bridge, Structural and Ornamental Iron Workers v. NLRB
(Deklewa), 434 U.S 335, 348–349 (1978). Nova Plumbing, Inc. v. NLRB, 330 F.3d 531, 534
(D.C. Cir. 2003).
Because an 8(f) prehire agreement is not based on a showing of majority support,
there is no presumption of majority status for the signatory union. J & R Tile, 291 NLRB
1034, 1036 (1988). In its decision in Deklewa & Sons, 282 NLRB 1375, 1385 fn. 31 (1987),
enfd. sub nom. International Association of Bridge, Structural and Ornamental Iron Workers
v. NLRB, 843 F.2d 770 (3d Cir. 1988), the Board adopted a rebuttable presumption that a
bargaining relationship in the construction industry was established under Section 8(f) and
placed the burden of proving that the relationship falls under Section 9(a) on the party
making that assertion. Id. at 1385 fn. 41. The Board in Deklewa did not, however, bar an
8(f) representative from attaining 9(a) status. The 9(a) status could be attained either
through a Section 9 certification proceeding or through a voluntary recognition where the
recognition is based on a clear showing of majority support among the unit employees, e.g.,
a valid card majority. Id. at 1387 fn. 53.
b. The contractual language
In asserting that Respondent is a 9(a) contractor, the General Counsel relies upon
the language in the successive CBA’s that were in effect between 2000 and 2009. The
General Counsel submits that this case is governed by the Board’s holding in Staunton Fuel
& Material, Inc., 335 NLRB 717 (2001). In that case, the Board identified the minimum
requirements in a written recognition agreement that would allow a union to be recognized as
a 9(a) representative without looking to extrinsic evidence. The Board specifically held that
“a written agreement will establish a 9(a) relationship if its language unequivocally indicates
that the union requested recognition as majority representative, the employer recognized the
union as majority representative, and the employer’s recognition was based on the union’s
having shown or having offered to show, an evidentiary basis of its majority support.” Ibid.
Counsel for the General Counsel argues that the recognition language of the parties’
2000–2003, 2003–2006, and 2006–2009 agreements each satisfies Staunton Fuel’s three
requirements. The General Counsel asserts that “the union’s required request for
recognition can be fairly implied from the contract language stating that the employer grants
the required recognition.” 335 supra at 720. Secondly, the General Counsel contends that
each agreement states that Respondent voluntarily recognized Local 9 as the exclusive
collective bargaining representative of all employees in the bargaining unit and that the
parties “have a 9(a) relationship.” Thirdly, the General Counsel submits that each agreement
states that the Union has submitted to the Employer evidence of majority support.3

3 Interestingly, the Board did not find 9(a) status in Staunton Fuel because the contract
language did not specifically state that the Union’s recognition was based upon a
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Accordingly, the General Counsel maintains that the language in the three agreements is
“independently sufficient” to establish Local 9’s Section 9(a) status.
Citing the court’s decision in International Assn. of Bridge, Structural, & Ornamental
Iron Workers (Deklewa), 843 F.2d 770, 778–779 (3d Cir. 1988), the Respondent argues that
whether a CBA is governed by Section 8(f) or 9(a) of the Act “is a question answered by the
provisions of the Act, not by the language in a contract.” The Respondent argues that more
than unsupported language is required to support a 9(a) relationship. The Respondent does
not dispute the fact that the recognition language embodied within the three agreements
contains the requirements outlined in Staunton Fuel. Respondent contends, however, that
simple language reciting the necessary conditions is not enough to overcome the 8(f)
presumption; the conditions must have actually occurred. Respondent further argues that
the case law specifically provides that the record must show that these conditions were met
and Respondent contends that no case provides that the 8(f) presumption may be overcome
by simply inserting it into CBA. Respondent further argues that in the instant case, neither
the General Counsel nor the Charging Party provided any evidence that the Union offered to
show majority support.
Just as the General Counsel relies upon the Board’s ruling in Staunton Fuel,
Respondent asserts that the General Counsel’s position on 9(a) status must fail under Nova
Plumbing, Inc. v. NLRB, 330 F.3d 531, 534 (D.C. Cir. 2003). In Nova Plumbing, the Board
applied the Staunton Fuel criteria and found that the parties’ relationship was governed by
Section 9(a). The Board specifically found that the CBA language clearly and
unambiguously set out the parties’ intent to create a 9(a) relationship. The United States
Court of Appeals for the District of Columbia Circuit denied enforcement of the Board’s order,
finding that contract language alone cannot establish the existence of a 9(a) relationship.
The Respondent contends that the circumstances in Nova Plumbing were
“substantially similar” to the circumstances here. A comparison of the circumstances,
however, reveals significant differences. In Nova Plumbing, a previous plumbing company
was operated by the employer’s father and the employer served as vice president of the prior
company. The previous company had a contract with the union and recognized the union as
the representative of its employees. The prior company ceased operations about the time
that Nova commenced business and Nova hired employees who had worked for the prior
company. Although the union sought recognition from Nova and bargained with Nova for a
contract, there was substantial disagreement. The union’s contractual fringe benefit trusts
threatened litigation against Nova and Nova filed an RM petition with the Board. The matter
was ultimately settled with the signing of a CBA, the withdrawal of the RM petition, and the
withdrawal of the union’s threat to file trust litigation. Nova’s president and owner; who had
been a vice-president in the previous company, signed various contractual documents in
resolution of this matter. When he met with unit employees and informed them of the
employer’s arrangements with the union, the employees expressed dissatisfaction with both
the employer and the union for entering into the contract. The contract was put into effect by
agreement of the parties on a job by job basis. During the life of the contract, employees
voiced continuing dissatisfaction to the employer’s agents both with the terms of the
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contemporaneous showing or an offer by the union to show majority support. In the instant
case, however, the recognition language specifically states that Local 9 has submitted
evidence of majority support. 335 supra at 720.
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agreement and with Nova’s recognizing the union as the employees’ representative. The
administrative law judge noted in his decision that the employer offered essentially
unchallenged evidence that employees made it clear at that time and on an ongoing basis
thereafter that they did not desire to be represented by the union. At the end of the contract
term, the employer notified the union of its intent to terminate the contract and declined to
negotiate a successor agreement. The employer defended its actions by asserting that the
union did not have majority support of its employees and that the parties had not intended to
enter into a 9(a) relationship. In the initial decision in this case, the administrative law judge
found that while the parties had a 9(a) relationship, the employer had a good-faith doubt that
the union represented a majority of employees, and thus the employer was privileged to
withdraw recognition and cease bargaining with the union upon expiration of the contract.
The Board, however, applied the Staunton Fuel test and found that the collective-bargaining
agreement unequivocally established that the union attained the status of majority bargaining
representative under 9(a) and therefore the employer violated the Act when it withdrew
recognition and refused to meet with the union.
In its rejection of the Board’s underlying decision, the court noted: “In reaching this
conclusion, we do not mean to suggest that contract language and intent are irrelevant. To
the contrary, they are perfectly legitimate factors (emphasis added in the decision) that the
Board may consider in determining whether the Deklewa presumption has been overcome.”4
The court went on to note: “Standing alone, however, contract language and intent cannot be
dispositive at least where, as here, the record contains strong indications that the parties had
only an 8(f) relationship.” In its analysis, the court referenced the uncontradicted testimony
concerning the employees’ opposition and resistance to the union’s representation. In its
analysis of whether the employer had a good-faith doubt of the union’s majority status, the
court also noted the employer’s filing of the election petition and the employer’s assertions
during negotiations with the union.
Thus, while the court did not find that the union could prove 9(a) status solely on
contractual language, the circumstances of the case were totally different than those involved
in this case. In Nova, there was substantial extrinsic evidence concerning the bargaining
relationship between Nova and the union as well as the employees’ opposition and
resistance to the contractual relationship. Therefore, while the court in Nova did not apply
the Board’s Staunton Fuel analysis in finding a 9(a) relationship, the circumstances were
contrary to those in the instant case.
Overall, it is apparent that in determining whether the presumption of 8(f) status has
been rebutted, the Board first considers whether the agreement, examined in its entirety,
“conclusively notifies the parties that a 9(a) relationship is intended.” Madison Industries,
Inc., 349 NLRB 1306, 1308 (2007); Oklahoma Installation Co, 219 F.3d 1160, 1165 (10th Cir.
2000), denying enfd. 325 NLRB 741 (1998). Where the agreement does so, the presumption
of an 8(f) status has been rebutted. 349 supra at 1308; 335 supra at 720.
The recognition language in the three agreements is without ambiguity. There is no
other language in the agreement that contradicts or obfuscates the clear intent of the
recognition language. In its decision in Madison Industries, Inc., the Board majority found
that the parties’ relationship was governed by Section 8(f) of the Act even though the

4 Citing J&R Tile, Inc., 291 NLRB 1034, 1037 (1988).
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recognition clause showed that the union demanded recognition as the employees’ majority
representative and that the employer voluntarily granted such recognition. In doing so, the
majority found it significant that the agreement contained a provision waiving the employer’s
right to file a petition for an election with the Board during that term of the agreement. The
Board noted that if the agreement were a 9(a) agreement, there would be no need for such a
provision because a 9(a) agreement bars an employer from filing a petition for an election
during its term. The Board concluded that the parties’ contemplated an 8(f) contract, and yet
wished to waive the employer’s right to file a petition during the term of the agreement. The
Board found that absent extrinsic evidence to clarify the ambiguity of the contract language,
the 8(f) presumption was not rebutted. 349 supra at 1309. In the instant case, there is no
ambiguity in the recognition language and Respondent has asserted no other contract
language that contradicts or is at odds with the recognition language in issue.
Additionally, there was no record testimony to explain how the recognition language
came to be a part of the CBA that was negotiated between the Union and the MCA.
Respondent presented no representative from the MCA or anyone else to testify concerning
the origin or the intent of the recognition language. In its posthearing brief, Respondent
argues that while Respondent entered into an 8(f) agreement, the Union at some point
“apparently inserted language into a contract renewal that purported to change the
agreement” to a 9(a) agreement. It is illogical, however, that the Union simply added this very
precise 9(a) language to the agreement without the approval or assent of the MCA
bargaining representatives. For the Union to have done so in not one, but in three,
successive collective- bargaining agreements seems rather unlikely. Respondent presented
no MCA representative to testify that the Union surreptitiously inserted the recognition
language without a valid basis or a demonstration of majority support. Moreover, the record
reflects that as of April 30, 2003, Respondent was one of 26 employers that were members
of the MCA and in July 2006, Respondent was one of 29 companies that comprised the
MCA. Had the Union covertly inserted the recognition language into the MCA agreements as
Respondent suggests, it would seem likely that one or more of the other MCA
employer/members would have challenged the 9(a) language. The record, however,
contains no evidence of any such challenges.
Overall, none of the parties presented any evidence concerning the MCA/Local 9
bargaining in which this recognition language was created or even discussed. Although
McMath confirmed that he had been a member of the bargaining committee in 2000, he
provided no details of the bargaining. He did not address the number of sessions that he
attended or how significant a role he played in the negotiations. The record only reflects that
he was not president of the Union at the time of the negotiations. Upon cross examination by
Respondent’s counsel, McMath acknowledged that he had not personally demonstrated the
Union’s majority status to the MCA and he was unaware of anyone else in the Union who did
so. Thus, while there was only one witness who attended the 2000 negotiations, none of the
parties seemed interested in probing any further into the details of the bargaining as it relates
to the recognition language. Louis DiPonio testified that he did not personally witness a
demonstration of majority support, however, he did not attend the bargaining sessions and
he did not sign the powers of attorney. Mathew DiPonio signed both the August 2001 and
the December 2001 power of attorney for the MCA. Although Mathew DiPonio was present
at the hearing and identified the August 2, 2001 power of attorney for the record, Respondent
did not elicit any testimony from him regarding his knowledge of the Union’s demonstration of
majority support. Thus, based upon the silence of the record, there is no extrinsic evidence
that contradicts or rebuts the very clear recognition language contained in all three collective-
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bargaining agreements.
c. Whether Respondent is time-barred from challenging 9(a) status
The General Counsel additionally argues that the Respondent is time-barred from
challenging the 9(a) status. There is no dispute that at the time that Respondent withdrew
recognition from Local 9, approximately 8 years had passed since Respondent signed the
August 2001 power of attorney. In signing the power of attorney, Respondent ratified,
approved, and confirmed all prior acts of the MCA in negotiating and signing CBA’s with the
Union. Additionally, by signing the power of attorney, Respondent agreed to be bound by the
contracts “in the same manner it would be bound in any contract executed by its duly
authorized agent.” Thus in signing the powers of attorney in August and in December 2001,
Respondent accepted and endorsed the 2001–2003 agreement. Thereafter, two more
agreements were negotiated by the MCA and by virtue of the powers of attorney, were also
endorsed and accepted by Respondent. During that 8 year period, no representation petition
or unfair labor practice charge was filed, challenging the Union’s majority status or the
recognition language in any of the three agreements. The Board has long held that a
challenge to majority status must be made within a reasonable period of time after Section 9
recognition is granted. Casale Industries, 311 NLRB 951, 953 (1993). The General Counsel
points out that although Casale Industries was a representation case, the rationale and
holding of the case has been extended to unfair labor practice cases. In New Brunswick
General Sheet Metal Works, 326 NLRB 915, 919–920 (1998), the employer signed an
agreement binding it to the terms and conditions of an agreement negotiated by the union
and a multi-employer association. The agreement provided that the union had submitted
proof and that the employer was satisfied that the union represented a majority of the
employees in the bargaining unit. In asserting that there was an 8(f) relationship rather than
a 9(a) relationship, the employer maintained that there must be evidence that the union
unequivocally demanded recognition as the 9(a) representative and that the employer
unequivocally accepted it as such, before a 9(a) relationship is established. The employer,
however, challenged the union’s majority status after 6 years and three successive contracts.
The Board affirmed the judge in finding that the employer was time barred from challenging
the union’s majority status and found that the union was the exclusive collective- bargaining
representative pursuant to 9(a) of the Act.
When Mathew DiPonio signed the power of attorney on August 2, 2001, and again on
December 14, 2001, his authorization ratified, confirmed, and approved “all prior acts” of the
MCA in the negotiating and signing of collective-bargaining agreements with Local 9. At the
time that Mathew DiPonio signed the powers of attorney, there was a collective-bargaining
agreement in place that was effective by its terms from June 22, 2000, until August 1, 2003.
Although there was no record evidence that confirmed when the agreement was actually
reached, McMath testified that it would not be unreasonable that the negotiations concluded
by July 1, 2000. There is no dispute therefore that at the time that Mathew DiPonio first
signed the power of attorney in 2001, there was an agreement in place. The agreement
contained an addendum that included the negotiated wage rates for the various unit
positions. Other than the wage rate addendum, the contract included an additional 17 pages
covering such things as working conditions, working hours, overtime, subcontracting,
grievance procedure, and numerous other work-related issues. The 9(a) recognition
language is included on page 5 of the 2000/2003 agreement. The identical recognition
language is also found on page 5 of the 2003/2006 agreement and on page 4 of the
2006/2009 agreement. Because Mathew DiPonio did not testify other than to identify the
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August 2, 2001 power of attorney that he signed, there is no record evidence to indicate
when he first obtained a copy of the 2000/2003 agreement and when he subsequently
received copies of the successive agreements. There is nothing in the record to indicate that
Respondent did not pay the negotiated wage rates included in the agreements or that
Respondent failed to follow any other terms of the three agreements. Thus, it is reasonable
to conclude that at the time that the power of attorney was initially signed in August 2001,
Respondent had seen the negotiated collective-bargaining agreement and was aware of the
terms to which Respondent would be bound. Even assuming that he would have signed the
power of attorney without having seen the terms of the contract to which he would be bound,
it is reasonable that he would have certainly received a copy of the contract upon signing the
power of attorney or shortly thereafter.
Louis DiPonio testified that while he knew that the three agreements existed, he was
not familiar with the terms of the agreement. He also acknowledged that he never attended
any of the negotiation sessions in 2000, 2003, or 2006. Although Respondent suggests that
the Union somehow surreptitiously inserted the 9(a) language into the contract without
Respondent’s awareness, there is no dispute that the language was included in each of the
agreements between 2000 and 2009. It is inconceivable that Louis DiPonio, as president of
the company, would have been unfamiliar with the contents of documents binding him to pay
specific wages to his employees and to follow other guidelines and rules concerning their
terms and conditions of employment. Furthermore, the lack of involvement in the bargaining
process has not been held to be a valid defense when the employer has indicated an
unequivocal intention to be bound by a multiemployer bargaining group. Harris Glass
Industries, Inc., 317 NLRB 595, 598 (1995).
d. The parties’ arguments concerning the issue of majority status
Respondent asserts that by relying solely upon the argument that the CBA contains
9(a) language, the Union “concedes” the fact that it has never enjoyed majority support
among Respondent’s employees. Respondent further argues that the Union failed to present
any evidence that it showed or offered to show the Respondent evidence of majority support.
As discussed above, the record is silent with respect to the bargaining between Local
9 and the MCA that brought about the 9(a) language in the collective-bargaining agreements.
As also discussed above, none of the parties presented any witnesses to demonstrate how
the language came to be in the agreements or to contradict the apparent intent of the
language. Although Respondent makes no claim that either Louis DiPonio or Mathew
DiPonio was present during the contract negotiations, Respondent presented no MCA
representatives to contradict the contract language itself or the factual assertions underlying
the language. There is no dispute that each of the three agreements contain the following:
“The Union has submitted to the Employer evidence of majority support, and the Employer is
satisfied that the Union represents a majority of the Employer’s employees in the bargaining
unit described in the current collective bargaining agreement between the Union and the
Employer.”
The Respondent attempts to invalidate the language by arguing that the Union has
not had majority support of its employees since 2005. Although he referenced no
documentation upon which he relied, Louis DiPonio testified that at no time during the last 5
years had a majority of its employees been members of the Union. Based upon benefit fund
records, Respondent also asserts that at all relevant times, its workforce consisted more of
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Local 1 workers than Local 9 workers. Louis DiPonio acknowledged however, that for the
past 20 years, while working in Local 9’s jurisdiction, Respondent has “100%” employed
Bricklayers that were either members of Local 1 or 9.
The General Counsel points out however, that even if Respondent employed
members of Local 1 to perform work within Local 9’s jurisdiction, the traveling members of
Local 1 worked under the terms of Local 9’s 2006-2009 agreement. General Counsel
submits that the 2006/2009 agreement (art. II, sec. B) provides that any employee
“represented by BAC” would be assigned work under the Agreement and not only those
employees with Local 9 as their home local. I also note that similar language is found in both
the 2000/2003 and the 2003/2006 agreements. Respondent introduced into evidence a
September 20, 2007 letter from the president of the BAC International that was addressed to
both McMath and to the president of Local 1. In the letter, the BAC president explained that
the BAC International has a strong policy favoring mobility of members and that members
are encouraged to travel for work. Accordingly, the president urged that local hiring
preferences and residency requirements should not be applied to limit members of the two
locals from traveling and working in the jurisdiction of either local. The General Counsel
submits, therefore, that the BAC International would certainly not encourage such
jurisdictional interchange if members from a sister local would defeat a union’s majority.
Furthermore, the General Counsel argues that the record is devoid of evidence that any
Local 1 member, much less a majority of unit employees, manifested nonsupport of the
Union. I find merit to the General Counsel’s argument. Admittedly, Respondent has
employed Local 9 and Local 1 members to perform 100 percent of the unit work for the last
20 years. To assert that the Union does not have a majority of support because Respondent
has assigned unit work to traveling Local 1 BAC members is not sufficient to demonstrate
that the Union has, in fact, actually lost majority support. Levitz Furniture Co., 333 NLRB
717, 717 (2001). Furthermore, I note that for over 40 years, the Board has held that “there is
no necessary correlation between membership and the number of union supporters since no
one could know how many employees who favor union bargaining do not become or remain
members thereof.” Terrell Machine Co., 173 NLRB 1480, 1481(1969).
Finally, I find that Respondent’s defense that Local 9 does not have majority status is
also time barred. In withdrawing recognition from the Union, Respondent did not rely upon a
good faith doubt or in fact any doubt of the Union’s majority status. There is no evidence that
at any time since 2001 has Respondent raised any question or concern about the Union’s
majority status. Therefore, Respondent’s question concerning majority status in response to
the Board’s complaint is not persuasive.
Accordingly, the total record evidence supports a finding that Respondent unlawfully
withdrew recognition of the Union’s 9(a) status and failed and refused to bargain with the
Union as the exclusive collective representative of its employees in violation of Section
8(a)(5) and (1).
2. Whether Respondent unlawfully failed and refused to provide information
The General Counsel alleges that on July 14, 2009, July 24, 2009, August 3, 2009,
and August 5, 2009, Local 9 requested information from Respondent that was necessary for,
and relevant to, the Union’s performance of its duties as the exclusive collective-bargaining
representative of the bargaining unit employees. The General Counsel further asserts that
since July 14, 2009, and August 5, 2009, Respondent has failed and refused to provide the
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information in violation of Section 8(a)(5) and (1) of the Act.
There is a general obligation for an employer to provide information needed by its
employees’ bargaining representative for the proper performance of its duties. NLRB v.
Acme Industrial Co., 385 U.S. 432, 435–436 (1967). This duty to provide information
includes information relevant to contract administration and negotiations. Barnard
Engineering Co., 282 NLRB 617, 619 (1987). Where the requested information concerns
items and conditions of employment relating to employees in the bargain unit represented by
the union, the information is presumptively relevant to the union’s representation function.
George Koch & Sons, Inc. 295 NLRB 695, 698 (1989). Where the information sought
pertains to matters occurring outside the bargaining unit, relevance is required to be more
precise. See Curtis-Wright Corp. v. NLRB, 347 F.2d 61, 69 (3d Cir. 1965). Under Board law,
it is sufficient in such requests that the requesting union simply indicate the reason for the
request. Carson & Gruman Co., 278 NLRB 329, 334 (1986); Bohemia Inc., 272 NLRB 1128
(1984). In determining relevancy of requested information, the Board uses a liberal
discovery-type standard to determine whether the information is relevant, or potentially
relevant, to require its production. Shoppers Food Warehouse Corp., 315 NLRB 258, 259
(1994); W.L. Molding Co., 272 NLRB 1239 (1984).
In his July 14, 2009 letter to Respondent’s counsel, Adam included 10 enumerated
requests for information in addition to a preliminary inquiry as to why Respondent believed
that McMath’s request to meet and bargain was irrelevant. A summary of the enumerated
items reflects the following kinds of information: (1) the reasons that Respondent did not
want to be a party to the MCA-Local 9 CBA; (2) information concerning Respondent’s
membership with the MCA; (3) a list of the names and addresses of employees who had
been in the bargaining unit since January 2008; (4) current projects on which the
Respondent was performing work, including the names of the employees working on the
project, the names of the general contractors, and locations of the projects; (5) copies of all
collective bargaining agreements for which Respondent is a party other than the agreement
between the MCA and Local 9; (6) projects for which Respondent had currently submitted
bids, including the location of the potential projects and expected start date; (7) whether the
Respondent is or was a member of the Construction Association of Michigan and information
concerning the cessation of the membership if applicable; (8) the identification of any work or
projects since January 1, 2008 where the Respondent subcontracted or assigned work to
that third party and the details of such; (9) Respondent’s current projects subject to federal,
state, or local prevailing wage/benefit law; and (10) copies of sworn or certified payroll
records submitted on federal, state, or local projects, subject to a prevailing wage and benefit
law, since January 1, 2008.
In a July 24, 2009 email to Respondent’s counsel, Adam again requested information
concerning the projects on which Respondent was currently performing work and information
as to whether Respondent was current in its payment of wages and benefits to bargaining
unit employees. Adam also asked what Respondent intended to do after July 31, 2009 with
respect to terms and conditions of employment if Respondent would not bargain with Local 9.
In the August 3, 2009 request for information, Adam requested information
concerning the status of Respondent’s CBA with Local 1. Adam also asked for a copy of that
agreement and copies of any letters sent by Respondent terminating the agreement with
Local 1. Adam reminded Respondent that the information requested on July 14, 2009, had
not been provided.
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On August 5, Adam requested the following:
1. Is DiPonio going to apply the terms of the BAC-MCA to the current
projects? If no, what changes have or will be made?
2. What “current projects” is DiPonio working on and how long is it
expected that the projects will last?
3. Which BCA represented workers are employed on these “current
projects?”
4. Has DiPonio laid-off any BAC-represented workers since July 30,
2009?
5. Has DiPonio changed any terms and conditions of employment related
to the BAC-bargaining unit since July 30, 2009.
In the various responses to Local 9’s requests for information, Respondent does not
address the relevancy of the requests with any specificity. Generally, in the written
responses, Respondent reiterated its withdrawal of recognition and its position that it did not
have a duty to bargain with the Union. Respondent’s only response to a specific information
item request was included in Kammer’s July 29, 2009 email confirming that Respondent
would not “waste time providing information that the union already has.” Kammer further
added that the Union “knows the projects that DiPonio is working on and we will not waste
time.”
The General Counsel submits that some of the information requested by the Union
was presumptively relevant to the Union’s statutory duties and identifies the request for the
names and addresses of the employees as an example. The General Counsel further
argues that with respect to other requests for information, Respondent sought no clarification
of the requests and raised no challenges of relevancy. In its decision in Pet Dairy, 345 NLRB
1222, 1223 (2005), the Board confirmed that it was incumbent upon the employer to seek
clarification rather than ignore a request for information. The Board explained that an
employer “may not simply refuse to comply with an ambiguous or over broad information
request, but must request clarification and/or comply with the request to the extent that it
encompasses necessary and relevant information.” 345 supra at 1223.
The General Counsel additionally asserts that the Union demonstrated the relevance
of the other requested information through the testimony of Adam during the hearing. Upon
questioning by counsel for the General Counsel, Adam testified in detail his reasons for
requesting the requested information concerning matters that would arguably not be
presumptively relevant. The General Counsel cites the Board’s decision in H&R Industrial
Services, 351 NLRB 1222, 1224 (2007), for authority that a union may inform an employer at
the unfair labor practice hearing of its reasons for requesting information that is not
presumptively relevant. In H&R Industrial, the Board unanimously adopted the judge’s
decision finding that the employer unlawfully failed and refused to provide requested
information in violation of Section 8(a)(5) and (1) of the Act.
In the rationale for her decision, the judge discussed the adequacy of the reasons
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given by the union for its information request to the employer. The judge found that the
reasons given by the union had clearly satisfied the Board’s standard. The judge then noted
that “in any event,” the facts underlying the request for the information and the reasons
supporting the information request were communicated in great detail at the hearing. The
judge went on to note that whether the employer’s duty to respond to the union’s information
request ran from the date initially alleged or from the date of the hearing, the remedy would
be the same and in either case the employer would be ordered to provide the requested
information. The Board affirmed the judge’s decision without discussion. By footnote, the
Board noted that in adopting the information request violation found by the judge, Member
Schaumber found that a telephone conversation between the parties, as well as the union’s
written request, sufficiently demonstrated to the employer that the union had an objective
basis for believing that the requested information was necessary for, and relevant to, the
proper performance of its statutory duties. The Board did not address the judge’s comment.
While the Board did not specifically affirm or reject the judge’s reasoning on this point, the
judge’s comment was not a significant part of the decision because the written request to the
employer was found by the judge and noted by Member Schaumber to independently satisfy
the Board’s standard. I note however, that in a decision footnote in Dodger Theatricals
Holdings, Inc., 347 NLRB 953 (2006), Member Schaumber stated that he did not necessarily
agree with the Board’s precedent that a union can simply state a reason for its request for
information without giving any actual basis for the same. He stated that he would, however,
find a violation where the union apprises the employer of its factual basis at the unfair labor
practice hearing, the union’s disclosure supports the relevancy of the information, and the
employer continues to withhold it. Member Schaumber noted that the date of the violation
would then be changed to reflect the date when the union provided the factual basis for the
request. While the judge’s dicta and Member Schaumber’s decision footnote would indicate
that a union may still be able to provide the necessary reasons and underlying facts in
support of an information request as late as the unfair labor practice hearing, the record
evidence in this case does not support a finding of a violation despite any additional
clarification given by the Union during the unfair labor practice hearing.
Overall, the Respondent does not contest the nature of Local 9’s various requests for
information that were made on July 14, July 24, August 3, and August 5, 2009. In its post
hearing brief, Respondent asserts, however, that the information requested was for time
periods occurring after Respondent terminated the agreement. Respondent contends that
because it only had an 8(f) relationship with the Union, Respondent was under no obligation
to furnish information for any period after July 31, 2009.
Furthermore Respondent asserts that even though it had no duty to furnish the
requested information, Respondent nevertheless offered to do so on multiple occasions. I
find merit to Respondent’s argument. As described above, there were a number of email
exchanges between Adam, Kammer, and Wright from July 14, 2009, through September 3,
2009, concerning the Respondent’s withdrawal of recognition and the Union’s requests for
information. When Kammer initially responded to Adam in her letter of July 15, 2009, she
reaffirmed Respondent’s termination of the contract and Respondent’s position that it would
not bargain with respect to a new agreement. Although Kammer did not specifically address
the Union’s information request, she confirmed that Respondent was willing to sit down with
Local 9’s representatives to discuss the best manner of winding down the projects on which
Respondent was currently working and “any other relevant issues.”
In his July 24, 2009 email to Kammer, Adam asked Kammer to identify the current
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projects on which Respondent was performing work in addition to asking whether
Respondent was current on paying wages and benefits to unit employees and the intentions
of Respondent for terms and conditions of employment if Respondent would not bargain with
the Union. In her email response of July 27, 2009, Kammer confirmed that Respondent
would provide the requested information when Respondent met with the Union to discuss the
jobs that would be affected by the Respondent’s recognition withdrawal. In a July 29, 2009
response, Kammer stated that Respondent would not provide information that the Union
already had about the current projects, but said nothing about whether Respondent would
provide the other requested information. She reiterated that Respondent would meet with
Local 9 to discuss Respondent’s specific projects and to discuss how they should be
completed. In an August 3, 2009 email to Adam, Wright stated:
“We will not be providing you information so that you can harass DiPonio, but
we will certainly agree to sit down and work out an appropriate arrangement,
at which time we will provide the information requested. (Emphasis added).
When Adam responded on August 3, 2009, he informed Wright that his legal analysis
was wrong and that such would be demonstrated by a Board complaint. While Adam
asserted that a union’s request for information was not harassment, he did not address
Respondent’s offer to meet and to provide the information. The subsequent email exchanges
between the parties dealt with the Union’s charge that had been filed on July 31, 2009, and a
discussion of a proposed agreement by which the terms of the previous CBA could be
applied to current projects without Respondent’s waiving its position on the terminated
contract.
Thus, the entirety of the email and letter exchange reflects that Respondent did not
refuse to provide the requested information. In fact, on both July 27, 2009 and again on
August 3, 2009, Respondent confirmed that it would provide the information when counsel
met with Adam. Adam asserted that no meeting was ever held with Respondent. Adam
explained that it was “blatant and obvious” that Respondent was not going to bargain for a
new contract. He testified “And a meeting that she was suggesting, the idea of sitting down
to discuss winding down the projects, was not adequate for purposes of collective
bargaining, so I filed the charge.” Adam acknowledged that Respondent included the offer to
meet and to provide the information in its correspondence to him. He asserted, however,
that he did not believe that Respondent intended to provide the information. He did not clarify
why he believed that the information would not be provided. He also asserted in his
testimony that he did not have to meet with Respondent in order for Respondent to have
provided the requested information.
Counsel for the General Counsel asserts that even though Respondent offered to
meet with Local 9 in nonbargaining discussions, Respondent also made it clear that any such
meeting would not involve bargaining. Citing the Board’s decision in American Meat Packing
Corp., 301 NLRB 835, 835 fn. 3 (1991), the General Counsel submits that Respondent was
not free to conditionally offer to furnish the requested information only if the Union would
agree to sit down, but not bargain, about winding down current projects. In American Meat
Packing, the employer claimed dire financial circumstances in bargaining and the Board
found that the employer unlawfully failed to provide the financial information requested by the
union. While the employer admitted an obligation to supply the information, the employer
conditioned the providing of information on the union’s conducting an extensive and costly
audit covering a period of 5 years. The Board affirmed the judge in finding that the
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conditional nature of this proffer of supporting information was unlawful. I don’t find the facts
in American Meat Packing to be significantly similar to the circumstances of this case.
The Respondent agreed to meet and to discuss the winding down of its projects and
in the course of doing so offered to provide the requested information. Although it was not
the offer to bargain as Local 9 wanted, it was nevertheless an offer to work out an
arrangement to provide information that had been requested. In both the July 14, 2009
request for information and the July 24, 2009 request for information, Adam specifically
asked Respondent to identify its current projects. In the July 14, 2009 request, Adam asked
for not only the identity of the project, but also the names and addresses of the employees
working on the project, the names of the general contractors, and the locations of the
projects. In the August 3, 2009 email to Adam, Wright confirmed that although Respondent
was not waiving its position to terminate the contract, Respondent was willing to finish
current projects using union labor and paying fringe benefits. In the same email, Wright
confirmed that although Respondent would not provide the information so that the Union
could harass Respondent, the Respondent would agree to sit down and work out an
appropriate arrangement, at which time Respondent would provide the requested
information. Based upon the wording of the offer, it is apparent that in such a meeting
Respondent would provide the information about the projects that had been requested by
Adam.
Because the Respondent was not agreeing to bargain for a new contract, Local 9
never pursued Respondent’s offer to meet and to provide the requested information. In his
response, Wright did not qualify that he would provide only a portion of the requested
information. Wright offered that when they met, Respondent would “provide the requested
information.” Unlike the circumstances of American Meat Packing, Respondent was not
requiring the Local to take on an unnecessary expense or do anything other than to meet
with Respondent to receive the requested information. An overview of the Wright and
Kammer’s responses reflect that they continually offered to meet with Adam to discuss
Respondent’s ongoing projects and how they would be affected by Respondent’s withdrawal
of recognition. Although Adam repeatedly asked Respondent to provide information about
the work that Respondent was currently performing, he did not respond to Respondent’s
offer to meet and discuss these projects.
In response to questions from Wright on cross-examination, Adams asserted that
Respondent could have mailed the information, dropped it off, or made other arrangements
to provide it to the Union. Clearly, the Union wanted the information provided in a form other
than in a personal meeting. In United Aircraft Corp., 192 NLRB 382, 389 (1071), the Board
noted that if an employer is to fulfill its bargaining obligation under Section 8(a)(5) of the Act,
the employer is required to furnish relevant information requested by the employee
representative. The Board added, however, “But it does not follow that the union is entitled
to such information in the exact form or on the exact terms requested.” Citing Lasko Metal
Products, Inc., 148 NLRB 976, 979 (1964), enfd. 363 F.2d 529 (6th Cir. 1966), the Board
noted that good-faith bargaining requires only that such information be made available at a
reasonable time and in a reasonable place and with an opportunity for the union to make a
copy of such information if it so desires. While the circumstances in Lasko are not identical,
there are some interesting similarities to the facts in the instant case. In Lasko, the union
requested information concerning the employer’s newly hired employees during negotiations.
The employer’s attorney informed the union representative that the information would be
made available, providing that the union was interested in negotiating a contract that would
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fully recognize the rights of these newly hired employees. The union representative repeated
his request and protested the attorney’s attempt to impose conditions upon the request. The
employer apparently abandoned its condition and the attorney subsequently notified the
union representative that the requested information was available and that the union could
see it in the attorney’s office at any reasonable time and the union could make a copy. The
union representative, however, requested that the information be made available by mail.
The union representative made no additional request for the information and the employer’s
attorney made no additional offer to produce the information. Because the information was
readily available in the employer’s records and not produced, the trial examiner found that
the employer violated Section 8(a)(5). The Board, however, did not agree. The Board
explained that while the employer was obligated to make the requested information available
to the union, it does not follow that the union has a right to such information under the terms
and conditions that it imposed. The Board found that the employer met its obligation by
making the requested information available at a reasonable time and at a reasonable place.
Ibid.
In the instant case, Respondent offered to meet with the Union and confirmed that it
would provide the requested information at that time. It appears likely that had the Union
responded to the offer, a reasonable time and place could have been arranged for the
information to be provided. Although the offer of the meeting did not encompass an offer to
bargain for a new contract, the offer was nevertheless sufficient to meet the Respondent’s
obligation to provide the requested information. Accordingly, I do not find that Respondent
failed or refused to provide information to Local 9 in violation of Section 8(a)(5) and (1).
Conclusions of Law
1. Respondent DiPonio Construction Company, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. Local 9, International Union of Bricklayers and Allied Craftworkers, AFL–CIO
is a labor organization within the meaning of 2(5) of the Act.
3. By withdrawing recognition of, and refusing to bargain with, Local 9 as the
exclusive collective-bargaining representative of its employees, Respondent violated Section
8(a)(5) and (1) of the Act.
4. I do not find that Respondent violated the Act in any other manner.
Remedy
Having found that the Respondent has violated Section 8(a) (5) and (1) of the Act, I
shall recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended:5

5 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
Continued
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ORDER
The Respondent, DiPonio Construction Company, Inc., Trenton, Michigan, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with Local 9 as the exclusive
representative of its employees in the appropriate unit with respect to wages, hours,
working conditions, and other terms and conditions of employment.
(b) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the
Act:
(a) On request by Local 9, retroactively apply the terms of the 2006-2009
collective-bargaining agreement with Local 9, to the extent that any changes in terms and
conditions of employment were implemented, and as appropriate, make whole any
employees of Respondent employed in the appropriate unit for any loss of pay or benefits
incurred as a result of Respondent’s unfair labor practices, with interest.6
(b) Recognize and, upon request, bargain collectively and in good faith
with Local 9 as the exclusive collective-bargaining representative of the Respondent’s
employees in the following appropriate unit, and upon request, embody in a signed
agreement any understanding reached. The appropriate unit is:
All full-time and regular part-time journeymen, apprentices, and support
employees who historically or traditionally perform work assigned within Local
9’s territorial jurisdiction, that involves all work including but not limited to all
forms of masonry construction, including all brick, aerated autoclaved concrete
masonry units, cement finishing, stone, concrete block, marble, plaster,
mosaic, tile, terrazzo, terra cotta, glass block, refractory materials, and
pointing-cleaning-caulking work, the complete installation of all forms of
masonry panels including the off and/or on-site fabrication, all integral elements
of masonry construction, all application of thin stone and thin stone panels,
forming of slabs up to one foot (1’) high, and all forms of substitute masonry
materials or building systems thereto utilized, employed by Respondent at its
Trenton, facility, but excluding guards and supervisors as defined in the Act.
_________________________
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
6 The General Counsel seeks an award of quarterly compound interest. While I am mindful that
the Board at one time referenced its consideration of modifying its interest calculation
procedures, there is no existing Board authority to deviate from the past practice of ordering
the award of simple interest. Rogers Corp., 344 NLRB 504, 504 (2005). Accordingly, I do not
recommend the award of compound interest as requested by the General Counsel.
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(c) Within 14 days after service by the Region, post at its Trenton,
Michigan facility, copies of the attached notice marked “Appendix.”7 Copies of the notice, on
forms provided by the Regional Director for Region 7, after being signed by the Respondent's
authorized representative, shall be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since July 31, 2009.
(d) Within 21 days after service by the Region, file with the Regional
Director a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated, Washington, D.C., September 14, 2010.
Margaret G. Brakebusch
Administrative Law Judge

7 If this Order is enforced by a Judgment of the 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(ATL)–19–10
Trenton, MI
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 withdraw recognition from or refuse to meet and bargain collectively with
Local 9, International Union of Bricklayers and Allied Craftworkers, AFL–CIO, as the
exclusive bargaining representative of our employees in the appropriate bargaining unit set
forth below.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in writing and sign any agreement
reached on terms and conditions of employment for our employees in the bargaining unit:
All full-time and regular part-time journeymen, apprentices, and support
employees who historically or traditionally perform work assigned within the
Local 9’s territorial jurisdiction, that involves all work including but not limited
to all forms of masonry construction, including all brick, aerated autoclaved
concrete masonry units, cement finishing, stone, concrete block, marble,
plaster, mosaic, tile, terrazzo, terra cotta, glass block, refractory materials, and
pointing-cleaning-caulking work; the complete installation of all forms of
masonry panels including the off and/or on-site fabrication, all integral
elements of masonry construction, all application of thin stone and thin stone
panels, forming of slabs up to one foot (1’) high, and all forms of substitute
masonry materials or building systems thereto utilized, employed by DiPonio
JD(ATL)–19–10
Trenton, MI
Construction Company, Inc. at or out of its Trenton, Michigan facility, but
excluding guards and supervisors as defined in the National Labor Relations
Act.
DIPONIO CONSTRUCTION COMPANY, INC.
(Employer)
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.
477 Michigan Avenue, Room 300, Detroit, Michigan 48226
(313) 226-3200, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTCE 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, (313) 226-3244.