Ethan Enterprises, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 2004

342 N.L.R.B. 129 (N.L.R.B. 2004)

ETHAN ENTERPRISES
342 NLRB No. 15
129
Ethan Enterprises, Inc. and District Council #5, In-
ternational Union of Painters and Allied Trades,
AFL–CIO. Case 19–CA–28877
June 24, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On January 16, 2004, Administrative Law Judge Jay
R. Pollack issued the attached decision. The Respondent
filed exceptions and the General Counsel filed limited
exceptions and a brief, which the Union joined. Addi-
tionally, the General Counsel and the Union each filed
answering briefs to the Respondent’s exceptions.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings,2 findings,3 and conclusions
and to adopt the recommended Order as modified4 and
set forth in full below.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Ethan Enterprises, Inc., Mill Creek, Wash-
ington, its officers, agents, successors, and assigns, shall
1. Cease and desist from

1 The Union also filed a motion to strike the Respondent’s excep-
tions. We deny the Union’s motion. However, we shall disregard
Exception 4, in which the Respondent excepts to “any and all other
findings of fact and conclusions of law made by Judge Pollack,” as this
exception fails to satisfy the requirements of Sec. 102.46(b) of the
Board’s Rules and Regulations. See Bonanza Sirloin Pit, 275 NLRB
310 (1985), and the cases cited therein.
2 The Respondent excepts to the judge’s decision to proceed with the
hearing after the Respondent’s attorney left in the middle of the hearing
when the judge sustained an objection to one of his cross-examination
questions. The attorney agreed to explain to his client that the hearing
was going to continue in the attorney’s absence. We find that the
judge’s decision to proceed with the hearing was not improper. See
Beta Steel Corp., 326 NLRB 1267 fn. 3, 1268 (1998); Bristol Manor
Health Care Center, 295 NLRB 1106 fn. 1 (1989), enfd. mem. 915
F.2d 1561 (3d Cir. 1990).
3 Some of the Respondent’s exceptions allege that the judge’s rul-
ings, findings, and conclusions demonstrate bias and prejudice. On
careful examination of the judge’s decision and the entire record, we
are satisfied that the Respondent’s contentions are without merit.
4 We modify the Order to include a records preservation provision,
as sought in the General Counsel’s and the Union’s exceptions, and to
conform to the violations found. The General Counsel and the Union
excepted to the unit description in the judge’s recommended Order. No
unit description is necessary in the Order as conformed to the violations
found.
(a) Failing and refusing to execute, on request, a writ-
ten contract incorporating any agreement it has reached
with the Union.
(b) Refusing to provide the Union with requested in-
formation relevant and necessary to its responsibilities as
exclusive collective-bargaining representative of Re-
spondent’s employees including names, addresses, phone
numbers, job classification, hours of work, wage rates,
and benefits information.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Execute the 2003–2004 master labor agreement as
requested by the Union.
(b) Give retroactive effect to the terms and conditions
of the collective-bargaining agreement and make whole
its employees and the Union for any losses they may
have suffered by reason of the Respondent’s refusal to
execute the agreement, as set forth in the remedy section
of the judge’s decision.
(c) Within 14 days from the date of this Order, provide
the Union with the information, necessary and relevant to
its status as exclusive collective-bargaining representa-
tive, which the Union requested in July 2003.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its location in Mill Creek, Washington, copies of the at-
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region
19, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 130
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since June 24,
2003.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by Region 19 at-
testing to the steps the Respondent has taken to comply.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail or refuse to execute, on request, a
written contract incorporating any agreement we have
reached with the Union.
WE WILL NOT refuse to provide the Union with re-
quested information relevant and necessary to its respon-
sibilities as your exclusive collective-bargaining repre-
sentative including names, addresses, phone numbers,
job classification, hours of work, wage rates and benefits
information.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL execute the 2003–2004 master labor agree-
ment as requested by the Union.
WE WILL give retroactive effect to the terms and condi-
tions of the collective-bargaining agreement and make
whole our employees and the Union for any losses they
may have suffered by reason of our refusal to execute the
agreement, with interest.
WE WILL provide the Union with the information, nec-
essary and relevant to its status as exclusive collective-
bargaining representative, which the Union requested in
July 2003.

ETHAN ENTERPRISES, INC.

Daniel Sanders, Esq., for the General Counsel.
J. Patrick Brown, Esq. (McKay Huffington), of Seattle, Wash-
ington, for the Respondent.
Richard H. Robblee, Esq. (Rinehart and Robblee), of Seattle,
Washington, for the Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard this
case in trial at Seattle, Washington, on December 4, 2003. On
August 26, 2003, District Council #5, International Union of
Painters and Allied Trades, AFL–CIO (the Union), filed the
charge alleging that Ethan Enterprises, Inc. (Respondent),
committed certain violations of Section 8(a)(5) and (1) of the
National Labor Relations Act (tAct). On October 29, 2003, the
Union filed an amended charge against Respondent. On Octo-
ber 31, 2003, the Regional Director for Region 19 of the Na-
tional Labor Relations Board issued a complaint and notice of
hearing against Respondent, alleging that Respondent violated
Section 8(a)(5) and (1) of the Act. Respondent filed a timely
answer to the complaint, denying all wrongdoing. In addition
Respondent alleged lack of jurisdiction, lack of due process,
breach of settlement agreement (by the Union) and breach of
duty of good faith and fair dealing.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses,1 and to file briefs. Upon the entire2 record,3 from

1 At the hearing Respondent was represented by Attorney J. Patrick
Brown of the Seattle law firm of McKay Huffington, PLLC. During
cross-examination of a witness called by the General Counsel, Brown
abruptly left the hearing after an adverse ruling. Brown’s departure left
the Respondent without representation, legal or otherwise, at the hear-
ing. The hearing proceeded in Brown’s absence. At the conclusion of
the hearing I set a time for the filing of briefs. On December 8, I noti-
fied Respondent, J. Patrick Brown and McKay Huffington of the date
for the filing of briefs. Respondent did not file a brief.
2 On December 31, 2003, the Charging Party filed a motion to cor-
rect the transcript. As the motion is unopposed, I grant the motion and
incorporate the corrections as ALJ Exh. 1.
3 Respondent objects to the lack of discovery in this proceeding.
“Pre-trial discovery, perhaps the primary source of delay in civil ac-
tions, is almost never allowed by the Board.” Emhart Industries v.
NLRB, 907 F.2d 372, 378 (2d Cir. 1990). The Board has held that
while some advantages may be gained from prehearing discovery, the
fact remains that it can be productive of delay, offering, as it does,
abundant opportunities for collateral disputes. The Board has held that
the tradeoff reflected in the Board’s Rules and Regulations is not un-
reasonable. See David R. Webb Co., 311 NLRB 1135, 1135–1136
(1993), and cases cited therein. Neither the Constitution nor the Ad-
ministrative Procedure Act confers a right to discovery in Federal ad-
ministrative proceedings. Kenrich Petrochemicals, Inc. v. NLRB, 893
F.2d 1468, 1484 (3d Cir. 1990). See also NLRB v. Valley Mold Co.,
530 F.2d 693, 695 (6th Cir. 1976), cert. denied 429 U.S. 824 (1976) (no
due process or APA requirement); Frilette v. Kimberlin, 508 F.2d 205,
208 (3d Cir.1974) (in banc), cert. denied 421 U.S. 980 (1975) (no re-
quirement under the APA).
Respondent’s attorney would not have waived his objection to the
lack of discovery by participating in the hearing. The proper course of
action for Attorney Brown would have been to continue to participate
ETHAN ENTERPRISES 131
my observation of the demeanor of the witnesses,4 and having
considered the posthearing briefs of the parties, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent denied service of the charge and amended
charge. The formal documents show that the Union filed the
charge on August 26, 2003. A copy was sent to Respondent by
regular mail that same date. In a letter dated September 2,
2003, Respondent’s president, Rebecca Johnson, and Greg Tift,
Respondent’s executive operations manager, wrote Region 19
of the Board acknowledging receipt of the charge in Case 19–
CA–28877. Respondent denied the allegations of the charge.
The letter also stated, “We refuse to defend ourselves against an
issue that is over, it is only harassment at this point. Please
close the case.” Enclosed with that letter was a copy of the
instant charge on which Tift had written, “There is no agree-
ment.” At the hearing, Respondent moved to dismiss the com-
plaint based on an alleged failure to serve the charge. The mo-
tion was denied. The record clearly establishes that the charge
was served on Respondent in a timely manner.
Respondent also denied service of the complaint. The com-
plaint issued on October 31, 2003. The complaint was served
on Respondent by regular mail and certified mail. Respondent
refused to accept the certified mail and it was returned to Re-
gion 19. The regular mail was not returned. The Region also
served a copy of the complaint on Respondent’s attorney J.
Patrick Brown.5 Brown filed a timely answer to the complaint
denying all allegations of the complaint except the allegation
that Respondent was a Washington corporation engaged in the
business of selling and installing commercial floor coverings.
The record establishes proper service of the complaint and that
Respondent had actual knowledge of the complaint.6
Respondent admits that it is a State of Washington corpora-
tion, with an office and place of business in Mill Creek, Wash-
ington, where it is engaged in the business of selling and install-
ing commercial floor coverage. Respondent denied that it was an
employer engaged in commerce within the meaning of Section

in the hearing and later, seek to have this precedent reviewed by an
appropriate U.S. Court of Appeals.
4 The credibility resolutions herein have been derived from a review
of the entire testimonial record and exhibits, with due regard for the
logic of probability, the demeanor of the witnesses, and the teachings of
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962).
5 J. Patrick Brown represented Respondent at the hearing in Cases
19–CA–28319, 19–CA–28349, and 19–CA–28702, on June 23, 2003.
Brown negotiated a settlement on behalf of Respondent in those cases
and Greg Tift, signed that agreement at the hearing. Rebecca Johnson
later signed on behalf of Respondent. Brown is also listed on Respon-
dent’s internet web page as Respondent’s legal advisor.
6 Respondent contended that this case be dismissed or deferred because
the Union seeks arbitration under the master labor agreement. However,
Respondent contends that it is not bound to the master labor agreement.
Further, Respondent has failed and refused to participate in the arbitration
procedure. Deferral in a case that involves total repudiation of a collec-
tive-bargaining agreement would be contrary to Board policy. See Oak
Cliff-Golman Baking Co., 207 NLRB 1063, 1064 (1973), enfd. 505 F.2d
1302 (5th Cir. 1974), cert. denied 423 U.S. 826 (1975).
2(2), (6), and (7) of the Act. More specifically, Respondent de-
nied that it sold goods or services in excess of $50,000 to cus-
tomers who were themselves engaged in interstate commerce, by
other than indirect means. In Cases 19–CA–28319, et al., Re-
spondent stipulated that its sales to customers, who met the
Board’s direct standards for asserting jurisdiction over nonretail
employers, were in excess of $50,000.
In this case, the evidence established that in the 12 months
prior to the issuance of the complaint, Respondent sold goods
and services valued in excess of $140,000 to Absher Construc-
tion at construction projects inside the State of Washington.
Absher purchased and received goods valued in excess of
$80,000 directly from outside the State of Washington for these
construction projects. Further, Respondent sold goods and
services in excess of $50,000 to Eric Hoffman Company of
Washington, Inc., at construction sites within the State of
Washington. Hoffman purchased and received goods and ser-
vices valued in excess of $50,000 from outside the State of
Washington. Accordingly, I find that Respondent meets the
Board’s indirect outflow standard for asserting jurisdiction over
nonretail enterprises. Thus, I find Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
Respondent denies that the Union is a labor organization
within the meaning of Section 2(5) of the Act. The Union is a
District Council of local unions of the International Union of
Painters and Allied Trades. Carpet, Linoleum and Soft Tile
Layers Local Union No. 1238 is a local union affiliated with
the Union. Employees of various contractors are members of
Local 1238. These employees participate in Local 1238, which
represents employees for purposes of collective bargaining.
The employee-members of Local 1238 elect delegates to the
Union. The Union represents employees, including the mem-
bers of Local 1238, for purposes of collective bargaining. The
Union is party, with various employers, to a master labor
agreement with Western Washington Independent Floor Cover-
ing Employers. As will be seen below, it is Respondent’s fail-
ure to execute and abide by the master labor agreement, which
forms the basis of this case. Both the Union and Local 1238
deal with employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment, and other employ-
ment conditions. Accordingly, I find that the Union and Local
1238 are both labor organizations within the meaning of Sec-
tion 2(5) of the Act.
II. BACKGROUND AND ISSUES
Respondent is a commercial floor covering company operat-
ing in Washington, Oregon, Arizona, and California. On June
23, 2003, it entered into a settlement agreement in Cases 19–
CA–28319, 19–CA–28439, and 19–CA–28702 with the Union.
Pursuant to that agreement, Respondent agreed to adopt and
become party to the master labor agreement. It further agreed
not to contest the Union’s majority status. The Union agreed
that Respondent would only have to pay 50 percent of backpay
and benefits for the period from June 6, 2002, to June 23, 2003.
The agreement was predicated on the trust funds specified in
the labor agreement waiving certain damages for fringe benefits
for the period June 6, 2002, to June 23, 2003. The Union also
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 132
agreed to waive all but $75 of its initiation fee not applied to
membership dues for nonmember Ethan employees.
Beginning in June 2003, and continuing until the date of the
hearing, the Union sought to obtain compliance with the set-
tlement agreement. To date, Respondent has not signed nor
agreed to abide by the master labor agreement.
Within this factual framework, the General Counsel alleges
that Respondent unlawfully refused to execute and abide by the
terms of an agreed-upon contract. Respondent contends that
there is no contract. Secondly, Respondent contends that its
employees have rejected the Union as their bargaining repre-
sentative. The complaint further alleges that Respondent failed
and refused to furnish the Union information relevant to collec-
tive bargaining.
III. THE FACTS
As stated above, on June 23, 2003, Respondent entered into an
agreement to adopt and become party to the master labor agree-
ment. It further agreed not to contest the Union’s majority status.
On June 24, Odie Carter, a business representative for the Union,
and Phillip Lindquist an organizer for the Union, visited Respon-
dent’s headquarters in an attempt to obtain a signed labor agree-
ment. Gregg Tift, Respondent’s executive operations manager,
told the union agents that Rebecca Johnson, Respondent’s presi-
dent, would not be at work that day and that Johnson had 5 days
to sign the agreement. Carter and Lindquist then explained the
trust fund forms to an office clerical.
Approximately 1 week later, Tift requested a copy of the Un-
ion’s constitution. Carter answered that copies of the constitu-
tion were available for the employees. Tift stated that he had
not found any employees who wanted the Union. Carter an-
swered that he did not know of any who did not want the Un-
ion. Tift asked if he could pay the Union to go away and Carter
answered no.
On or about July 3, Carter and Lindquist met with Respon-
dent’s employees in the presence of Tift. Carter attempted to
explain the union benefit plans to the employees. However,
employees who expressed dissatisfaction with having to join
the Union interrupted Carter’s presentation. After attempting to
explain the Union security clause of the contract, Carter deter-
mined that he had a hostile audience and he and Lindquist left
the facility.
On July 8, Carter delivered to Respondent a letter that he la-
beled a formal grievance. In the grievance, Carter complained
that the collective-bargaining agreement had not yet been
signed, the union-security clause had not been enforced, and the
benefits bond had not been complied with. In addition, Carter
requested the names and phone numbers of Respondent’s em-
ployees. Carter further explained that the agreement contained
a grievance and arbitration clause. Finally, Carter noted that if
these matters were not resolved within 20 days the Union
would seek arbitration.
On July 14, Carter notified Respondent that the trust plans
had accepted the June 23 settlement agreement between Re-
spondent and the Union. Carter told Tift that all the waivers
required by the settlement had been accepted and that the Un-
ion was ready for the labor agreement. Tift said that he did not
expect the trust funds to accept the settlement and he expected
the settlement to be null and void. Tift told Carter, “agreements
are made to be broken.” Carter responded, “The agreement
was not made to be broken but made to be adhered to.”
On July 22, Carter sent Tift and Johnson another formal
grievance complaining that Respondent had not complied with
“all aspects of the [June 23] agreement.” The Company did not
respond to either the July 8 or 22 grievances. On July 28,
Carter delivered a letter to Respondent in which he responded
to a purported employee petition rejecting the Union. Carter
reviewed the facts leading up to the Respondent’s failure to
sign the agreed-upon contract. Carter stated that the Union
intended to enforce the June 23 agreement and demanded that
Respondent sign the master labor agreement. He further de-
manded the names and addresses of all bargaining unit employ-
ees and records showing wages, hours, and benefits paid. Fi-
nally, Carter demanded that Respondent submit to an audit by
the trust funds and that Respondent schedule a grievance meet-
ing concerning the pending grievances. A meeting was sched-
uled for August 20. However, Tift cancelled the meeting.
On August 5, an attorney for the trust funds wrote Respon-
dent requesting an audit pursuant to the master labor agree-
ment. On August 6, the Union’s attorney wrote Respondent in
an attempt to select an arbitrator to hear the Union’s grievances
of July 8 and 22. Respondent refused to accept the certified
letter from the Union’s attorney. However, the copy sent by
regular mail was not returned.
On August 26, Carter wrote Tift and Johnson requesting an
audit for the trust funds. He further requested that Respondent
provide the previously requested information concerning em-
ployee names, addresses, and compensation. Finally, he re-
quested that Respondent terminate its apprenticeship program
and utilize the apprenticeship program provided for in the mas-
ter labor agreement. That same date, the Union filed the instant
charge against Respondent. On August 28, Johnson and Tift
wrote the attorney for the trust funds and contended that there
was “no collective Bargain [sic] agreement.” The letter stated,
“Please respect the wishes of our employees and please discon-
tinue the Legal Bombardment that is being reigned on Ethan
Enterprises, Inc.”
On September 2, Johnson and Tift wrote the acting Regional
Director complaining about the actions of Carter and Lindquist.
The letter stated, inter alia, “We discount any charge the NLRB
or [the Union] makes, because it is all fiction and fabricated by
these two individuals.” A copy of this letter was sent to the
Union’s attorney. That same date, Johnson and Tift wrote the
acting Regional Director a letter acknowledging receipt of the
charge and denying the allegations of the charge. They re-
quested “the Union stop, and have no further contact with our
company. We refuse to defend ourselves against an issue that
is over, it is only harassment at this point.” Enclosed was a
copy of the charge on which Tift had written, “There is no
agreement.”
On September 8, Johnson and Tift wrote the Union’s attor-
ney stating, “Your assault on Ethan Enterprises, Inc., needs to
cease.” The letter accused the Union of “harassment and
threats towards the company and its employees.” Finally, the
letter stated, “June 24th, the 5-day deadline went and passed.
The agreement was poison [sic] by local 1238 business agents.
ETHAN ENTERPRISES 133
The Union has been rejected by all Ethan employees. Please
discontinue your actions as this matter is closed.”
On September 30, the Union’s attorney wrote Respondent in
an effort to select an arbitrator to hear the Union’s grievances.
Respondent refused the certified letter but the letter sent by
registered mail was not returned. After receiving no response
from the Company, on October 16, the Union’s attorney again
wrote Respondent regarding the selection of an arbitrator.
Again the certified letter was refused but Respondent appar-
ently received the letter by regular mail.
In October, the trust funds joined by the Union brought suit
against Respondent in the United States District for the Western
District of Washington for failure to make proper payments
under the master labor agreement. Respondent filed a counter-
claim and third party complaint. That suit was pending at the
time of the instant trial.
IV. ANALYSIS AND CONCLUSIONS
A. The Refusal to Sign the Agreed-Upon Contract
Section 8(d) of the Act explicitly requires the parties to a col-
lective-bargaining relationship to execute “a written contract
incorporating any agreement reached if requested by either
party.” H. J. Heinz Co. v. NLRB, 311 U.S. 514 (1941). It is
well established that an employer’s failure to reduce to writing
an agreement reached with a union constitutes an unlawful
refusal to bargain. H. J. Heinz Co. v. NLRB, supra (1941).
“When an oral agreement is reached as to the terms of a collec-
tive-bargaining contract, each party is obligated, at the request
of the other, to execute that contract when reduced to writing,
and a failure or refusal to do so constitutes” a violation of Sec-
tion 8(a)(5) of the Act. Liberty Pavilion Nursing Home, 259
NLRB 1249 (1982); Interprint Co., 273 NLRB 1863 (1985).
“It is well established that technical rules of contract do not
control whether a collective-bargaining agreement has been
reached.” Pepsi-Cola Bottling Co. v. NLRB, 659 F.2d 87, 89
(8th Cir. 1981). Rather, the crucial inquiry is whether there “is
conduct manifesting an intention to abide and be bound by the
terms of an agreement.” Capitol Husting Co. v. NLRB, 671
F.2d 237, 243 (7th Cir. 1982).
In determining whether underlying oral agreement has been
reached, the Board is not strictly bound by technical rules of
contract law but is free to use general contract principles
adopted to the bargaining context. Americana Healthcare Cen-
ter, 273 NLRB 1728 (1985). The burden of proof is on the
party alleging the existence of the contract. Cherry Valley
Apartments, 292 NLRB 38 (1988).
In the instant case, the General Counsel has shown that an
agreement was reached, and that the document, which Respon-
dent has refused to execute, reflected that agreement. Here the
undisputed evidence establishes that the parties negotiated a
settlement agreement, which required Respondent to execute a
copy of the master labor agreement with the Union. Without
legal justification, Respondent has refused to execute that labor
agreement. First, Respondent contended that it had 5 days to
sign the labor agreement. Next, Respondent argued that
agreements are made to be broken. Later, Respondent con-
tended that the 5 days had passed and that the matter was con-
cluded.
The evidence shows that the agreement was subject to the
trust funds waiving certain damages on fringe benefits for the
period June 6, 2002, to June 23, 2003. However, the Union
gave Tift timely notice that the proper waivers had been ob-
tained. The fact that Tift believed, or hoped, that the waivers
would not materialize does not relieve Respondent of its statu-
tory obligations. When the Union informed Respondent that
the waivers had been obtained, the sole condition precedent had
been removed and the labor agreement had been reached.
In Vallejo Retail Trade Bureau, 243 NLRB 762, 767 (1979),
the administrative law judge stated, with Board approval:

[T]he expression “meeting of the minds” in contract law does
not literally require that both parties have identical subjective
understandings on the meaning of material terms in the con-
tract. Rather, subjective understandings (or misunderstand-
ings) as to the meaning of terms, which had been asserted to
are irrelevant, provided that the terms themselves are unambi-
guous “judged by a reasonable standard.” Pittsburgh-Des
Moines Steel Company, 202 NLRB 880, 888 (1973), and au-
thorities cited therein. See also, e.g., Monument Printing Co.,
Inc., 231 NLRB 1215, 1220 (1977), and authorities cited
therein.

Tift never raised any disagreement with the contract as written
with the Union. Rather, the alleged disagreements arose after
Tift unlawfully refused to sign the contract. A contract, bind-
ing on Respondent, had been reached prior to Respondent’s
refusal to sign it.
As stated in Teamsters Local 287 (Reed & Graham), 272
NLRB 348 (1984), the test is whether or not applying an objec-
tive or reasonable standard, irrespective of the subjective opin-
ions of the parties, mutual agreement on a contract was
reached. Judged by a reasonable objective standard, I find that
a contract was reached and that Respondent was obligated to
sign it.
I find no merit to Respondent’s defense that its employees
rejected the Union. First, Respondent did not present any evi-
dence that its employees did not want to be represented by the
Union. A petition purportedly signed by Respondent’s em-
ployees was not authenticated. Even assuming that the em-
ployee petition is authentic, the employees signed the petition
more than a week after Respondent had unlawfully refused to
sign the agreed-upon contract. The Board has long held that an
employer may not withdraw recognition from a union while
there are unremedied unfair labor practices tending to cause
employees to become disaffected from the union. Olson Bod-
ies, 206 NLRB 779, 780 (1973). As one court has stated, a
“company may not avoid the duty to bargain by a loss of major-
ity status caused by its own unfair labor practices.” NLRB v.
Williams Enterprises, 50 F.3d 1280, 1288 (4th Cir. 1995). In
cases involving a withdrawal of recognition, “the causal rela-
tionship between the unlawful act and subsequent loss of ma-
jority support may be presumed.” Lee Lumber, 322 NLRB 175,
178 (1996), enfd. in relevant part 117 F.3d 1454 (D.C. Cir.
1997). Thus, in the instant case, the purported employee peti-
tion was tainted by Respondent’s unfair labor practices. See
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 134
Jano Graphics, Inc., 339 NLRB 251 (2003). I further note that
Respondent’s employees did not file either a decertification
petition or a deauthorization petition with the Board.
B. The Refusal to Furnish Information
In the instant case, after the unlawful refusal to execute and
abide by the collective-bargaining agreement, the Union re-
quested information relevant to the collective-bargaining proc-
ess. Respondent continued to refuse certified mail from the
Union. Respondent compounded its errors by failing and refus-
ing to provide the relevant information to the Union.
Section 8(a)(5) of the Act makes it an unfair labor practice
for an employer to refuse to bargain collectively with the repre-
sentatives of his employees, subject to the bargaining unit pro-
visions of Section 9(a). The duty to bargain in good faith re-
quires an employer to furnish information requested and needed
by the employees’ bargaining representative for the proper
performance of its duties to represent unit employees of that
employer. NLRB v. Acme Industrial Co., 385 U.S. 432, 437
(1967). A union’s request for information regarding the terms
and conditions of employment of the employees employed
within the bargaining unit represented by the union, is “pre-
sumptively relevant” to the Union’s proper performance of its
collective-bargaining duties, Samaritan Medical Center, 319
NLRB 392, 397 (1995), because such information is at the
“core of the employee-employer relationship,” Graphics Com-
munications Local 13 v. NLRB, 598 F.2d 267, 271 fn. 5 (D.C.
Cir. 1979), thus, it is relevant by its “very nature.” Emeryville
Research Center v. NLRB, 441 F.2d 880, 887 (9th Cir. 1971).
Therefore, an employer’s statutory obligation to provide in-
formation presupposes that the information is relevant and nec-
essary to a union’s bargaining obligation vis-à-vis its represen-
tation of unit employees of that employer. White-Westinghouse
Corp., 259 NLRB 220 fn. 1 (1981). Whether the requested
information is relevant and sufficiently important or needed to
invoke a statutory obligation to provide it is determined on a
case-by-case basis.
In making this determination of relevance, the Board has fol-
lowed the following principles:

Wage and related information pertaining to employees in the
bargaining unit is presumptively relevant, for, as such data
concerns the core of the employer-employee relationship, a
union is not required to show the precise relevance of it,
unless effective employer rebuttal comes forth; as to other re-
quested data, however, such as employer profits and produc-
tion figures, a union must, by reference to the circumstances
of the case, as an initial matter, demonstrate more precisely
the relevance of the data it desires. Curtiss-Wright Corp. v.
NLRB, 347 F.2d 61, 69 (3d Cir. 1965), cited with approval in
Coca-Cola Bottling Co., 311 NLRB 424, 425 (1993).

Thus, if the requested information goes to the core of the em-
ployer-employee relationship, and the employer refuses to pro-
vide that requested information, the employer has the burden to
prove either lack of relevance or to provide adequate reasons
why it cannot, in good faith, supply the information. If the
information requested is shown to be irrelevant to any legiti-
mate union collective-bargaining need, however, a refusal to
furnish it is not an unfair labor practice. (Coca-Cola Bottling
Co., 311 NLRB at 425 (citing Emeryville Research Center v.
NLRB, 441 F.2d 880 (9th Cir. 1971))).
The standard to determine a union’s right to information will
be “a broad discovery type standard,” which permits the union
access to a broad scope of information potentially useful for the
purpose of effectuating the bargaining process. NLRB v. Acme
Industrial, 385 U.S. at 437 fn. 6; see also Anthony Motor Co.,
314 NLRB 443, 449 (1994). There only needs to be “the prob-
ability that the desired information was relevant, and that it
would be of use to the union in carrying out its statutory duties
and responsibilities.” Acme Industrial, 385 U.S. at 437.
In this case, all of the information in question: employee
names, addresses, phone numbers, job classifications, hours
worked, rates of pay, and benefits, is presumptively relevant.
As such, no showing of particular need is necessary. Curtiss-
Wright Corp., 347 F.2d at 69.
As to employee job classification, it is a condition of em-
ployment that is presumptively relevant information. Millard
Processing Services, 308 NLRB 929, 930 (1992). The same is
true for rates of pay. Dynatron/Bondo Corp., 305 NLRB 574,
574 (1991); see also TEG/LVI Environmental Services, 328
NLRB 483 (1999), Children’s Hospital of San Francisco, 312
NLRB 920 (1993).
As to names, addresses, and telephone numbers, “[t]he Un-
ion’s obligation to represent employees presupposes the ability
to communicate with them.” Howe K. Sipes Co., 319 NLRB
30, 39 (1995). It is well settled that the names, addresses, and
telephone numbers are therefore presumptively relevant infor-
mation. Dynatron/Bondo Corp., 305 NLRB at 574; Valley
Programs, 300 NLRB 423, 423 (1990); see, e.g., Burkart
Foam, 283 NLRB 351 (1987), enfd. 848 F.2d 825 (7th Cir.
1988); Tom’s Ford, Inc., 253 NLRB 888, 894, 895 (1980).
As to the wage and benefit information, the Board has found
that a “[l]ist of current employees containing the names, ad-
dresses, job classifications, rates of pay and telephone numbers
if any” and a “[l]ist of present job locations including site ad-
dresses” was presumptively relevant information “inasmuch as
the request relates to wages, hours, and terms and conditions of
employment of the unit employees. The Respondent’s denial
of its relevance, without more, does not raise an issue warrant-
ing a hearing.” TEG/LVI Environmental Services, id.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to execute and abide by an agreed-upon collective-
bargaining agreement with the Union.
4. Respondent has violated Section 8(a)(1) and (5) of the
Act by failing to provide the Union with relevant information
concerning employee names, addresses, phone numbers, job
classifications, wage rates, hours of work, and benefits.
ETHAN ENTERPRISES 135
5. Respondent’s conduct in paragraphs 3 and 4 above are
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
REMEDY
Having found Respondent engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action to effectu-
ate the purposes and policies of the Act.
The Respondent shall be ordered to execute the 2003–2004
master labor agreement requested by the Union on June 24, 2003.
The Respondent further shall be ordered to comply with the
terms of the agreement retroactive to June 24, 2003, the effective
date of the agreed-upon collective-bargaining agreement, de-
scribed above. To the extent that the Respondent has failed to
comply with the terms of the above-described contract, it shall be
ordered to make whole its employees for any loss of earnings and
other benefits they may have suffered as a result of that failure.
Also, to the extent that the Respondent has failed to make
payments to any benefit funds in the amounts required by the
above-described contract, it shall be ordered to make such funds
whole in accordance with the terms of that contract, including
paying any additional amounts applicable to such delinquent
payments in accordance with Merryweather Optical Co., 240
NLRB 1213, 1216 (1979). In addition, the Respondent shall
reimburse unit employees for any expenses ensuing from its
failure, if any, to make such required payments or contributions,
as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981). All payments
to unit employees shall be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), with interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).”7
[Recommended Order omitted from publication.]

7 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delin-
quent contributions during the period of delinquency, the Respondent
will reimburse the employee, but the amount of such reimbursement
will constitute a setoff to the amount that the Respondent otherwise
owes the fund.