Madison Industries

National Labor Relations Board - Board Decisions

May 31, 2007

349 N.L.R.B. 1306 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
349 NLRB No. 114
1306
Madison Industries, Inc. and District Council of Iron
Workers of the State of California and Vicinity.
Cases 21–CA–34759 and 21–CA–34927
May 31, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The issue in this case is whether a bargaining agree-
ment between a construction industry employer and un-
ion established an 8(f) or a 9(a) relationship. The judge
found, on a stipulated record, that the parties’ relation-
ship was governed by Section 9(a) and that the Respon-
dent violated Section 8(a)(5) and (1) of the Act by with-
drawing recognition from, and refusing to provide rele-
vant information to, the Union following the expiration
of the parties’ agreement.1 As discussed more fully be-
low, we disagree with the judge and find instead that the
Respondent lawfully repudiated its relationship with, and
lawfully refused to provide requested information to the
Union following the expiration of their bargaining
agreement. Consequently, the Respondent did not violate
Section 8(a)(5) and (1) as alleged, and we shall dismiss
the complaint in its entirety.
I. STIPULATED FACTS
The Respondent is a construction industry employer
that fabricates and installs service station canopies. The
Charging Party and its affiliated locals (the Union) were
parties to successive sets of bargaining agreements with
the Respondent covering jobsites in California and most
of Nevada between 1995 and 2001 (the Agreement). The
most recent Agreement ran from July 1, 1998, until June
30, 2001.
The Agreement’s recognition clause stated that:
The undersigned individual employer hereby voluntar-
ily recognizes the Union as the majority collective bar-
gaining representative of all employees employed by
said individual employer performing work covered by
this agreement at all jobsites [in the local geographic

1 On September 26, 2002, Administrative Law Judge Jay R. Pollack
issued the attached decision. The Respondent filed exceptions and a
supporting brief to which the General Counsel filed an answering brief.
The General Counsel filed limited cross-exceptions and a supporting
brief, to which the Respondent and the Union separately filed answer-
ing briefs. The General Counsel filed a reply brief to these answering
briefs. The Union also separately filed a limited cross-exception.
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 stipulated record in
light of the exceptions and briefs and has decided to affirm the judge’s
rulings, findings, and conclusions only to the extent consistent with this
Decision and Order.
area] and agrees that the Union has demonstrated that it
is the majority representative of such employees in an
appropriate collective bargaining unit.
Provisions of the Agreement established an exclusive hiring
hall, which set priority for referrals based on length of em-
ployment under the Agreement. The Agreement also re-
quired that persons employed under the Agreement become
a member of the Union “as a condition of employment after
the 8th day of employment.” By executing the Agreement,
the Respondent also waived “any right that he or it may
have to terminate, abrogate, repudiate or cancel this Agree-
ment during its term” or “file or process any petition before
the National Labor Relations Board seeking such termina-
tion, abrogation, repudiation or cancellation.”
On February 12, 2001,2 pursuant to the terms of the
Agreement, the Respondent notified the Union of its in-
tent to terminate the Agreement upon its expiration and
offered to negotiate a new agreement. On May 10, the
parties met to negotiate a new contract, but were unable
to do so. By its terms, the Agreement expired on June 30.
On September 7, the Union requested an up-to-date em-
ployee contact list, as well as a list of the Respondent’s
current jobs and its current policies governing wages,
hours, and working conditions. On September 25, the
Respondent repudiated its relationship with the Union
and refused to provide the requested information.
In addition to these basic facts, the parties stipulated
that the Union was never certified as the exclusive repre-
sentative of the Respondent’s employees. Additionally,
they stipulated that, had the matter gone to a hearing, the
General Counsel would not present any evidence that the
unit employees executed any authorization cards or other
documents by which they designated the Union as their
exclusive bargaining representative. Similarly, the parties
stipulated that the Respondent’s witnesses would have
testified that the Union never offered to provide and
never provided to the Respondent any authorization
cards or any other evidence of majority status, except to
the extent that the terms of the Agreement may by them-
selves be deemed to constitute such an offer and such a
showing. Finally, the parties stipulated that, aside from
the Agreement, there was no other evidence indicating
that the Respondent had voluntarily recognized the Un-
ion as the 9(a) representative of its employees.
II. JUDGE’S DECISION
On the basis of these stipulated facts, the judge deter-
mined that the recognition clause in the parties’ Agree-
ment established a 9(a) relationship because it “clearly
establishes the Union . . . requested recognition as the
majority representative of the bargaining unit employ-

2 All dates refer to 2001, unless otherwise indicated.
MADISON INDUSTRIES 1307
ees” and “grants the Union . . . status as the majority rep-
resentative of the unit employees.” The judge also found
that the Respondent was barred, under Section 10(b),
from challenging the Union’s majority status at the time
the Agreement was executed. Accordingly, the judge
concluded that the Respondent violated Section 8(a)(5)
and (1) by withdrawing recognition from, and refusing to
provide requested information to the Union after the
Agreement expired.
III. PARTIES’ CONTENTIONS
Despite the parties’ agreement on the facts, they dis-
agree about the nature of their relationship. The Respon-
dent contends that the judge incorrectly found that the
parties’ Agreement was governed by Section 9(a) and
that the Union was its employees’ exclusive 9(a) repre-
sentative. Rather, the Respondent contends that the Gen-
eral Counsel failed to rebut the presumption that the par-
ties’ relationship was governed by Section 8(f) and,
therefore, it was free to repudiate its relationship with the
Union when the Agreement expired. Specifically, the
Respondent argues that the judge erred by focusing his
analysis solely on the Agreement’s recognition clause.
The Respondent implicitly contends that other provisions
of the Agreement create ambiguity concerning the nature
of the relationship. These include the Respondent’s
waiver of its right to file an election petition during the
term of the Agreement, the 8-day grace period in the
union-security clause of the Agreement, and the parties’
exclusive hiring hall arrangement. In light of this ambi-
guity, the Respondent contends, the judge should have
considered the lack of extrinsic evidence of the parties’
intent to form a 9(a) relationship and the lack of evidence
of the Union’s majority status when the Agreement was
executed.
The General Counsel contends that the Agreement’s
recognition clause unequivocally showed that the Union
demanded recognition as the employees’ majority repre-
sentative and that the Respondent voluntarily granted
such recognition. Because the recognition clause clearly
establishes a 9(a) relationship, the General Counsel ar-
gues that the inclusion in the Agreement of provisions
typically found in 8(f) agreements does not detract from
the Union’s 9(a) status. For these reasons, the General
Counsel argues that the Respondent violated Section
8(a)(5) and (1) by withdrawing recognition from, and
refusing to provide information to the Union following
the expiration of the Agreement.3

3 The Union’s answering brief indicates that it joins in the position
of the General Counsel.
The General Counsel and Union separately filed limited cross-
exceptions to the judge’s recommended remedy for the violations
found. Because we find, for the reasons discussed below, that the Re-
IV. LEGAL PRINCIPLES
Section 8(f), subparagraph (1) permits unions and em-
ployers in the construction industry to enter into collec-
tive-bargaining agreements without the union having to
establish that it has the support of a majority of the em-
ployees in the covered unit.4 The provision therefore
creates an exception to Section 9(a)’s general rule requir-
ing a showing of majority support of unit employees for
the union.5 Section 8(f) also creates an exception to the
general rule that an employer and a union lacking major-
ity support of unit employees commit unfair labor prac-
tices by entering into a bargaining relationship with re-
spect to those employees.
The distinction between a union’s representative status
under Section 8(f) and under Section 9(a) is significant
because an 8(f) relationship may be terminated by either
the union or the employer upon the expiration of their
collective-bargaining agreement. John Deklewa & Sons,
282 NLRB 1375, 1386–1387 (1987), enfd. sub nom. Iron
Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988).
By contrast, a 9(a) relationship (and the associated obli-
gation to bargain) continues after contract expiration,
unless and until the union is shown to have lost majority
support. Levitz Furniture Co., 333 NLRB 717 (2001).6
Similarly, an 8(f) contract does not bar a representation
petition under Section 9, while a contract made with a
9(a) representative does bar such a petition. Deklewa,
supra at 1387.7

spondent did not violate Sec. 8(a)(5) and (1), we need not address these
cross-exceptions.
4 Sec. 8(f) provides, in pertinent part: “It shall not be an unfair labor
practice under subsections (a) and (b) of this section for an employer
engaged primarily in the building and construction industry to make an
agreement covering employees engaged (or who, upon their employ-
ment, will be engaged) in the building and construction industry with a
labor organization of which building and construction employees are
members . . . because (1) the majority status of such labor organization
has not been established under the provisions of [Sec.] 9 prior to the
making of such agreement.”
5 Sec. 9(a) states, in pertinent part: “Representatives designated or
selected for the purposes of collective bargaining by the majority of the
employees in a unit appropriate for such purposes, shall be the exclu-
sive representatives of all the employees in such unit for the purposes
of collective bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment.”
6 Chairman Battista and Member Schaumber did not participate in
Levitz Furniture Co. and express no opinion on whether it was correctly
decided.
7 Deklewa discarded the Board’s former “conversion doctrine,” un-
der which an 8(f) relationship could be converted to a 9(a) relationship
without an election, on the basis of any of several criteria that did not
necessarily reflect employee majority support for the union. Since the
conversion doctrine had permitted employees to be “locked in” to 9(a)
representation beyond the term of one contract by a union lacking ma-
jority support, abandoning the doctrine served the interest of protecting
employees’ right to determine their own representation status. Id. at
1386–1387 and fn. 47.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1308
The Deklewa Board recognized that a Congressional
objective in enacting this provision in Section 8(f) was to
“lend stability to the construction industry while fully
protecting employee free choice principles.” Id. at 1388.
In furtherance of this objective, Deklewa adopted a rebut-
table presumption that a bargaining relationship in the
construction industry was established under Section 8(f),
and placed the burden of proving that the relationship
instead falls under Section 9(a) on the party making that
assertion. Id. at 1385 fn. 41. In so doing, however, Dek-
lewa did not foreclose an 8(f) representative from achiev-
ing 9(a) status. Under Deklewa, a construction union with
an 8(f) bargaining relationship with an employer could
(like a nonconstruction union) achieve 9(a) status either
through a Section 9 certification proceeding or “from vol-
untary recognition accorded . . . by the employer of a sta-
ble work force where that 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.
More recently, the Board has held that voluntary rec-
ognition under Section 9 may be established solely by
the terms of a collective-bargaining agreement that meets
minimum requirements. Staunton Fuel & Material, 335
NLRB 717, 719–720 (2001). There, the Board explicitly
adopted the standards articulated by the United States
Court of Appeals for the Tenth Circuit in NLRB v. Triple
C Maintenance, Inc., 219 F.3d 1147 (10th Cir. 2000),
enfg. 327 NLRB 42 (1998), and NLRB v. Oklahoma In-
stallation Co., 219 F.3d 1160 (10th Cir. 2000), denying
enf. 325 NLRB 741 (1998). Those standards provide that
the parties’ agreement will be independently sufficient to
establish a union’s 9(a) representative status, and to
overcome the presumption of an 8(f) status, where the
agreement unequivocally indicates that: (1) the union
requested recognition as the majority or 9(a) representa-
tive of the unit employees; (2) the employer recognized
the union as the majority or 9(a) bargaining representa-
tive; and (3) the employer’s recognition was based on the
union’s having shown, or having offered to show, evi-
dence of its majority support. Staunton Fuel, supra at
719–720 (citing Triple C Maintenance, supra at 1155–
1156; Oklahoma Installation, supra at 1164).8
The parties’ failure to specifically refer to Section 9(a)
in the recognition clause of their agreement is not neces-
sarily fatal to finding that a 9(a) relationship exists, pro-
vided that the rest of the agreement conclusively notifies
the parties that a 9(a) relationship is intended. Triple C
Maintenance, supra at 1155 fn. 3; Oklahoma Installation,

8 Chairman Battista and Member Schaumber did not participate in
Staunton Fuel and no party has sought its reversal. Accordingly, they
apply that precedent but express no opinion on whether that case was
correctly decided.
supra at 1165. The Board confirmed in Nova Plumbing,
Inc., that “ignoring the parties’ intent as reflected by a
review of the other contract terms and provisions read as
a whole, does a disservice to the parties by frustrating
their true intent and unnecessarily upsetting the stability
of their relationship.” 336 NLRB 633, 635 fn. 4 (2001),
enf. denied 330 F.3d 531 (D.C. Cir. 2003).9
Thus, in determining whether the presumption of an
8(f) status has been rebutted, the Board first considers
whether the agreement, examined in its entirety, “conclu-
sively notifies the parties that a 9(a) relationship is in-
tended.” Oklahoma Installation, supra at 1165. Where it
does so, the presumption of an 8(f) status has been rebut-
ted. Staunton Fuel, supra at 720. Where the parties’
agreement does not do so, the Board considers any rele-
vant extrinsic evidence bearing on the parties’ intent as
to the nature of their relationship. Id. at fn. 15.
V. ANALYSIS
The judge found that the recognition clause quoted
above “clearly establishes” that the Union requested rec-
ognition as the majority representative of the unit em-
ployees, the Respondent recognized the union as major-
ity representative, and the recognition was based on the
Union’s having shown or offered to show evidence of its
majority support. For the purpose of deciding this case
we shall assume arguendo that the judge’s reading of the
recognition clause is correct. We find, however, that the
judge erred by limiting his analysis solely to the lan-
guage of that contractual provision. As discussed above,
the Staunton Fuel standard requires an examination of
the parties’ entire agreement to determine whether a 9(a)
relationship was intended. Nova Plumbing, supra at 635
fn. 4. Having conducted that examination, we find that

9 In Nova Plumbing, the Board applied the Staunton Fuel criteria and
found that the parties’ relationship was governed by Sec. 9(a). The
Board found that the language of the parties’ agreement clearly and
unambiguously set forth the parties’ intent to create a 9(a) relationship.
In denying enforcement to the Board’s decision, however, the
United States Court of Appeals for the District of Columbia Circuit
called the viability of Staunton Fuel into question. The court stated that
the proposition that contract language alone can establish a 9(a) rela-
tionship completely fails to account for employee rights under Sec. 7
and “runs roughshod” over the principles established in Ladies Gar-
ment Workers v. NLRB, 366 U.S. 731, 737 (1961) (holding that an
agreement recognizing the union as majority representative in the ab-
sence of an actual showing of majority support for the union “must fail
in its entirety”). 330 F.3d at 536–537. The court thus held that contract
language and intent to form a 9(a) relationship, standing alone, “cannot
be dispositive” at least where, as in that case, “the record contains
strong indications that the parties had only a 8(f) relationship.” Id. at
537.
Chairman Battista and Member Schaumber did not participate in
Nova Plumbing and express no opinion on whether it was correctly
decided.
MADISON INDUSTRIES 1309
the General Counsel has not established that the Agree-
ment reflects a 9(a) relationship.
Specifically, the Agreement contains a provision waiv-
ing the Respondent’s right to file a petition for an elec-
tion with the Board during the term of the Agreement. If
the agreement were a 9(a) agreement, there would be no
need for such a provision. That is, an agreement gov-
erned by Section 9(a) bars an employer from filing a pe-
tition for an election during its term.10 By contrast, a peti-
tion can be processed during the life of an 8(f) contract.
Thus, it would appear that the parties contemplated an
8(f) contract, and yet wished to waive the Respondent’s
right to file a petition during the term of the Agreement.11
Because the parties’ contractual language is ambigu-
ous, we must next consider any extrinsic evidence con-
cerning the parties’ intent. Staunton Fuel, supra at 720,
fn. 15. The parties have in essence stipulated that no
such evidence bearing on the nature of their relationship
exists. The stipulated record indicates that the General
Counsel would present no evidence that employees exe-
cuted authorization cards or other documents designating
the Union as their exclusive bargaining representative,
that the Respondent’s witnesses would have testified that
the Union never offered to provide and never provided to
the Respondent any evidence of majority status, and that
the Agreement itself was the only evidence of voluntary
recognition of the Union as a 9(a) representative. Absent
extrinsic evidence to clarify the ambiguity of the Agree-
ment found above, the General Counsel has not rebutted
the 8(f) presumption.12
As noted above, there is an ambiguity in the contract
when read as a whole. Our colleague relies on contract
interpretation principles which suggest how that ambigu-
ity is to be resolved. However, assuming arguendo that

10 Montgomery Ward & Co., 137 NLRB 346, 348–349 (1962).
11 The dissent correctly notes that even under a 9(a) relationship, a
petition may be filed during a 60- to 90-day period before contract
expiration, and that the waiver provision would close that period. The
waiver provision would, however, be of far greater significance in an
8(f) setting, where it would bar an employer petition for the entire
contract term. Consistent with our understanding of the waiver provi-
sion, the General Counsel has conceded that “there are provisions in the
contract which set out the parties’ relationships if and when the contract
is an 8(f) contract.” On balance, then, the waiver provision does sug-
gest an 8(f) relationship.
Member Schaumber is of the view that the Agreement’s restrictive
hiring hall provision and 8-day grace period in the union-security
clause, while not dispositive of the nature of the parties’ relationship,
also suggest that the parties contemplated an 8(f) relationship.
12 In this regard, this case is unlike M & M Backhoe Services, 345
NLRB 462, 462 (2005), where the Board found that the parties’ recog-
nition agreement created a 9(a) relationship. There, actual evidence of
the union’s majority support offered to the employer at the time of
contract execution confirmed the Board’s finding that Sec. 9(a) con-
trolled the parties’ relationship.
she is correct and that the contract is more reasonably
construed as a Section 9 contract, that does not contro-
vert our view that the contract is not free from ambiguity.
And, under extant law, that is what makes the difference
here.13
Whatever merit such contract interpretation principles
might have in a case involving solely contractual issues,
they are of little use in resolving the representation issue
before us in this case. We are called on to decide
whether a majority of the unit employees have “desig-
nated or selected” the Union as their exclusive represen-
tative for the purpose of collective bargaining. Sec. 9(a).
This determination implicates the employees’ Section 7
right of self-organization and self-determination. See
Ladies Garment Workers, supra at 731. Consistent with
these principles and the importance of the statutory rights
involved, extant Board law requires proof that an agree-
ment “unequivocally demonstrates that the parties in-
tended to be governed by 9(a)” before 9(a) status may be
found on the basis of contractual language. Triple C
Maintenance, supra at 1155; see also Oklahoma Installa-
tion, supra at 1165 (requiring proof that agreement “con-
clusively notifies the parties that a 9(a) relationship is
intended”). For the reasons previously stated, the par-
ties’ agreement in this case fails to satisfy that standard.
In our view, application of general canons of contract
construction cannot supply the conclusive and unequivo-
cal notice that the agreement itself fails to provide.
For all of the foregoing reasons, we find that Section
8(f) governs the parties’ relationship and that the Re-
spondent lawfully repudiated its relationship with, and
lawfully refused to provide information to, the Union
after the parties’ agreement expired. Consequently, we
reverse the judge’s findings that the Respondent violated
Section 8(a)(5) and (1) and dismiss the complaint in its
entirety.
ORDER
The complaint is dismissed.
MEMBER LIEBMAN, dissenting.
The recognition clause in the contract here clearly
states that the Respondent employer “agreed” that the
Union “has demonstrated” that it was the unit employ-
ees’ “majority representative,” and that the Respondent
recognized the Union as the “majority collective-
bargaining representative.” This language meets the re-
quirements of Staunton Fuel & Material, 335 NLRB 717
(2001), for establishing a relationship under Section 9(a)

13 We do not pass on whether unambiguous language alone is suffi-
cient to establish Sec. 9 status. See M & M Backhoe Service v. NLRB,
469 F.3d 1047, 1050 (D.C. Cir. 2006), enfg. 345 NLRB 462.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1310
of the Act (as opposed to Sec. 8(f)), and the Respon-
dent’s repudiation of that relationship thus was unlawful.
Citing the accepted rule that the parties’ “entire
agreement” should be reviewed to determine their intent,
the majority points to another contract provision in which
the Respondent waives its right to file an election peti-
tion with the Board during the agreement’s term. In the
majority’s view, while this provision would be a signifi-
cant concession in an 8(f) contract (during which an em-
ployer would otherwise have the right to file a petition),
there would be “no need” for it in a 9(a) relationship
(where a contract in force would bar a petition). From
this, the majority finds a suggestion that the parties’ rela-
tionship came under Section 8(f) and was accordingly
terminable at contract expiration. The resulting ambigu-
ity, in the majority’s view, precludes the required show-
ing by the General Counsel that the parties had a 9(a)
relationship.
This approach stretches the entire-agreement rule too
far. This is not a dispute over a single term that could
arguably be interpreted in two different ways. Where, as
here, a contract provision clearly addresses an issue with
an unambiguous meaning, there can be no ambiguity
unless another provision squarely contradicts it.1 The
recognition clause in this contract states categorically
that the Union is the “majority representative” and that
the Employer recognizes it as such. A separate clause
that only waives the Respondent’s right to file a Board
petition—which would merely be consistent with the
Union’s having an 8(f) status—simply does not negate or
contradict the recognition clause in a manner that creates
a genuine ambiguity.2

1 Similarly, specific terms bearing on a particular subject take prece-
dence over general terms. E.g., Electrical Workers Local 48 (Oregon-
Columbia Chapter of NECA), 342 NLRB 101, 107 (2004); UBC Local
537 (E.I. DuPont De Nemours), 303 NLRB 419 fn. 2 (1991); Newspa-
per & Mail Deliverers (Macromedia Publishing), 281 NLRB 588, 591
fn. 15 (1986), affd. mem. 804 F.2d 1248 (3d Cir. 1986). As shown
below, it takes a considerable stretch to read the waiver clause here as
even a “general” indication that the Union’s representative status fell
under Sec. 8(f). However, even if the waiver is read in that manner, the
recognition clause, which refers specifically to the Union’s “majority
representative” status, prevails and establishes a 9(a) status.
2 For that matter, the waiver at issue is consistent with a 9(a) bar as
well as with an 8(f) relationship: it precludes the Employer from filing
a petition with the Board. Moreover, the majority’s premise that the
waiver at issue here was consistent only with an 8(f) relationship is
incorrect. First, the waiver is consistent with a 9(a) bar: it precludes the
Employer from filing a petition with the Board. Moreover, although
the existence of a 9(a) relationship bars the filing of a Board petition for
most of the contract’s term, a petition may be filed during the 60-to 90-
day period before contract expiration. River Forest Golden Bear, 218
NLRB 1074 (1975). An employer’s waiver of its right to file a petition
during that period would therefore be of value to the union, even in a
9(a) relationship. In short, the waiver clause in this contract was con-
sistent with either a 9(a) or an 8(f) relationship and therefore creates no
But, even if the recognition and waiver clauses in this
contract are somehow read to be in conflict, the recogni-
tion clause would still prevail. Where contract provi-
sions are “irreconcilable” by their literal terms and one of
them “contributes most essentially” or is “more impor-
tant or dominant” or “principal” to the contract, that pro-
vision should be applied.3 The recognition clause, at the
very outset of this contract, establishes the fundamental
relationship between the Union and the Employer. The
waiver clause is contained within the contract’s termina-
tion paragraph and is clearly not intended to define the
parties’ underlying relationship.
Finally, it is an established rule that a contract must be
interpreted, to the extent reasonably possible, in a man-
ner that avoids inconsistency and gives meaning to all of
its terms.4 The contract’s waiver clause can obviously be
applied to the full extent of its terms without altering the
clear meaning of the recognition clause, and should
therefore be so read.5
Nonetheless, the majority bypasses these contract prin-
ciples and instead emphasizes the employees’ representa-
tional interest in free choice. Protection of that interest
is, however, encompassed by the Staunton Fuel require-
ments discussed fully in the majority opinion.
For all of these reasons, the majority’s rationale for
finding this contract “ambiguous” does not withstand
scrutiny. Because the contract’s recognition clause
meets the requirements of Staunton Fuel, the parties had
a 9(a) relationship and the respondent employer was re-
quired to continue bargaining with the Union after con-
tract expiration.6 The Employer’s refusal to bargain and

ambiguity that would cast doubt on the explicit terms in the recognition
clause.
3 Longshoremen ILWU Local 26 (Foreign Trade Export Packing
Co.), 112 NLRB 1246, 1258–1259 (1955); Williston, Sec. 32:15 at 507,
509.
4 Theo. Hamm Brewing Co., 115 NLRB 1157, 1163 (1956); Supreme
Sunrise Food Exchange, 105 NLRB 918, 920 (1953).
5 The contract also required new hires to join the Union after the 7th
day of employment and established an exclusive hiring hall. In Mem-
ber Schaumber’s view, these two provisions also “suggest” an 8(f) pre-
hire rather than a 9(a) majority-representative relationship. However,
although such contract provisions are specifically authorized in, respec-
tively, Sec. 8(f)(2) and (4), those statutory authorizations, by their
terms, clearly apply to any collective-bargaining agreement in the con-
struction industry, regardless of whether an agreement establishes a
pre-hire relationship under Sec. 8(f)(1) or a majority-representative
relationship under Sec. 9(a). These two provisions therefore cast no
light on the nature of the parties’ relationship.
6 As noted by the majority, the U.S. Court of Appeals for the District
Court Circuit, in refusing to enforce the Board’s decision in Nova
Plumbing, supra, did not find the test adopted in Staunton Fuel to be
adequate for all disputes where a 9(a) relationship is claimed solely on
the basis of contract language. Nova Plumbing v. NLRB, supra at 536–
538. However, as the Board has already observed, see M&M Backhoe
Service, 345 NLRB 462, 462 (2005), enfd. 469 F.3d 1047, 1050 (D.C.
MADISON INDUSTRIES 1311
refusal to provide information relevant to bargaining
consequently violated Section 8(a)(5).
Stephanie Cahn, for the General Counsel.
Stuart H. Young, Jr. (Hill, Farrer & Burrill), of Los Angeles,
California, for the Respondent.
David A. Rosenfeld (Van Bourg, Weinberg, Roger &
Rosenfeld), of Oakland, California, for the Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. This case was
submitted to me based on a stipulation of facts dated July 11,
2002. On September 24, 2001, District Council of Iron Work-
ers of the State of California and Vicinity (the Union) filed the
charge in Case 21–CA–34759 alleging that Madison Industries,
Inc. (Respondent), committed certain violations of Section
8(a)(1) and (5) of the National Labor Relations Act (the Act).
On January 11, 2002, the Union filed the charge in Case 21–
CA–34927. On February 7, 2002, the Regional Director for
Region 21 of the National Labor Relations Board issued a con-
solidated complaint and notice of hearing against Respondent,
alleging that Respondent violated Section 8(a)(1) and (5) of the
Act. The complaint was amended on May 16, 2002. Respon-
dent filed timely answers to the complaint denying all wrong-
doing.
By stipulation, the parties have waived their right to a hear-
ing before an administrative law judge. All parties have been
given the opportunity to file briefs. On the stipulated record,
including all exhibits thereto, and having considered the briefs
filed by the parties, I make the following
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent is a California corporation with an office and
place of business in Los Angeles, California, where it is en-
gaged in the business of fabricating and installing canopies and
other tilt-wall construction primarily for service stations. Dur-
ing the 12 months prior to December 31, 2001, Respondent
purchased and received goods valued in excess of $50,000
directly from suppliers located outside the State of California.
The parties stipulated and I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
The parties stipulated and I find that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act. Local
Union Nos. 118, 155, 229, 377, 378, 416, and 433 (the Local

Cir. 2006), the court in Nova Plumbing was addressing a situation
where there was affirmative, uncontroverted evidence that, in direct
contradiction of the terms of the recognition clause, the union had not
had the unit’s majority support when the contract was executed; this
evidence was clearly critical to the court’s holding. 330 F.3d at 536–
538. In this case, by contrast, the stipulated record shows only that the
Union never showed or offered to show that it had majority support.
Because the Respondent could have raised a timely challenge but chose
not to do so, and because there is no affirmative evidence that the Un-
ion lacked majority support, a finding that the parties had a 9(a) rela-
tionship would not conflict with the court’s decision in Nova Plumbing.
Unions) are affiliates of the Union. Each of the Local Unions is
itself a labor organization within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
For many years, the Union (and the Local Unions) were par-
ties to successive collective-bargaining agreements covering
the terms and conditions of employment of employees in an
appropriate bargaining unit. The appropriate bargaining unit in
the collective-bargaining agreements was:
All employees employed by Respondent performing work
covered by the collective-bargaining agreement described be-
low in paragraph 8, at all jobsites located within the State of
California and the State of Nevada with the exception of the
Counties of Elko, Eureka and white Pine located in the state
of Nevada; excluding any employees performing electrical
work, including installation of lights and signs and installation
of graphics on buildings and canopies, and all other employ-
ees, office clerical employees, professional employees, guards
and supervisors as defined in the Act.
The most recent agreement (the Independent Agreement) was
entered into on or about July 1, 1998. The Iron Worker Em-
ployers State of California and a portion of Nevada and District
Council of Iron Workers of the State of California and Vicinity
Master Agreement (the Master Agreement) was effective by its
terms from July 1, 1998, through June 30, 2001, and was incor-
porated by reference as part of the Independent Agreement. The
Independent Agreement also incorporated by reference a
Memorandum of Understanding dated June 30, 1995 (the
MOU). A letter dated August 3, 1998, modified the terms of the
MOU.
The Independent Agreement, as well as the Master Agree-
ment, continued in effect for the period from July 1, 1998,
through June 30, 2001. The parties agree that throughout that
period, Respondent and the Union “each observed these two
agreements.”
The complaint alleges that Respondent violated Section 8(a)
(1) and (5) of the Act by failing and refusing to furnish infor-
mation to the Union in September 2001. On or about September
25, 2001, Respondent withdrew its recognition of the Union as
the exclusive collective-bargaining representative of the bar-
gaining unit employees. The parties stipulated “there is a dis-
pute between the parties as to whether Respondent’s relation-
ship with the Union was based on Section (f) or Section 9(a) of
the Act.”
B. The Facts
Pursuant to the terms of the Independent Agreement, on Feb-
ruary 12, 2001, Respondent notified the Union of its intent to
terminate the Independent Agreement effective June 30, 2001.
Respondent also offered to meet and confer with the Union for
the purpose of negotiating a new contract pursuant to the terms
of Section 8(d) of the Act. On May 10, 2001, Respondent and
the Union met to negotiate a new collective-bargaining agree-
ment. However, the parties did not reach a new agreement.
The parties stipulated that the bargaining unit employees
employed by Respondent and covered by the terms of the Mas-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1312
ter Agreement and Independent Agreement, never participated
in an NLRB conducted election in which the Union or the Lo-
cal Unions were certified as their exclusive collective-
bargaining representative. The Union and the General Counsel
presented no evidence that the unit employees executed any
authorization cards or other documents by which they desig-
nated the Union as their exclusive bargaining representative
with Respondent. The Union never offered to provide and
never provided to Respondent authorization cards or any other
evidence of majority status, except to the extent that the terms
of the Independent Agreement provide:
It is hereby mutually understood and agreed by and between
the undersigned individual employer and the District Council
of Iron Workers of the State of California and Vicinity, for
and on behalf of its affiliated California Field Iron Workers
Local Unions, that for and in consideration.
. . . .
The undersigned individual employer hereby voluntarily rec-
ognizes the Union as the majority collective bargaining repre-
sentative of all employees employed by said individual em-
ployer performing work covered by this agreement at all job-
sites located within the State of California and the State of
Nevada with the exception of the Counties of Elko, Eureka
and White Pine located in the State of Nevada and agrees that
the Union has demonstrated that it is the majority representa-
tive of such employees in an appropriate collective bargaining
unit.
The parties stipulated that unless it is found that the language
of the Independent Agreement shows that Respondent voluntar-
ily recognized the Union and the Local Unions as the 9(a) rep-
resentative, there is no other evidence that Respondent granted
voluntary recognition to the Union.
By letter dated September 7, 2001, the Union requested that
Respondent provide information relevant to negotiations for a
new collective-bargaining agreement. By letter dated Septem-
ber 25, 2001, Respondent repudiated its bargaining relationship
with the Union, and, based on that repudiation, declined to
furnish the Union information relevant to negotiations for a
bargaining agreement.
C. Contentions of the Parties
General Counsel and the Union contend that the Independent
Agreement unequivocally establishes that the Union requested
and was granted recognition as the majority representative of
the unit employees under Section 9(a) of the Act. Respondent
contends that the language of the Independent Agreement is
insufficient to overcome the presumption that recognition of the
Union was pursuant to Section 8(f) of the Act.
The General Counsel and the Union argue that if it is found
that the Union was the 9(a) representative of the unit employ-
ees, the Respondent violated Section 8(a)(5) of the Act by not
supplying the relevant information to the Union. Respondent
argued that there was no 9(a) status and that, therefore, there
could be no violation of Section 8(a)(5). Thus, Respondent did
not address the merits of the information request.
D. Analysis
1. The withdrawal of recognition
As a general rule the Board presumes that construction in-
dustry bargaining relationships are governed by Section 8(f) of
the Act. Since Respondent is an employer engaged in the con-
struction industry, the Board presumes that Respondent and the
Union intended their relationship to be governed by Section
8(f), rather than Section 9(a). The burden of proving the exis-
tence of a 9(a) relationship is on the party asserting that such a
relationship exists. John Deklewa & Sons, 282 NLRB 1375,
1386–1387 (1987), enfd. sub nom. Iron Workers Local 3 v.
NLRB, 843 F.2d 770 (3d Cir. 1988). H. Y. Floors & Gameline
Painting, 331 NLRB 304 (2000).
A union proves 9(a) status by unequivocally showing that:
(1) the union requested recognition as the majority or 9(a) rep-
resentative of the unit employees; (2) the employer recognized
the union as the majority or 9(a) representative; and (3) the
employer’s recognition was based on the union’s having
shown, or having offered to show evidence of its majority sup-
port. These requirements can be satisfied through a written
agreement between the parties, such as when parties have me-
morialized their relationship in a collective-bargaining agree-
ment. Central Illinois Construction, 335 NLRB 717, 720
(2001). This is true even if the union never presented the em-
ployer with evidence of its majority status but an unequivocal
demand is contained within the language of the agreement. H.
Y. Floors & Gameline Painting, above; Oklahoma Installation
Co., 325 NLRB 741 (1998), enf. denied 219 F.3d 1160 (10th
Cir. 2000).
I find that the recognition language of the Independent
Agreement clearly establishes the Union, for and on behalf of
the Local Unions, requested recognition as the majority repre-
sentative of the bargaining unit employees. The language fur-
ther grants the Union, for and on behalf of the Local Unions,
status as the majority representative of the unit employees. The
issue is whether the contract language satisfies the requirement
of Central Illinois Construction, that the Respondent’s recogni-
tion was based on the Union having shown, or having offered
to show, evidence of its majority support.
As stated above the Independent Agreement states Respon-
dent “agrees that the Union has demonstrated that it is the ma-
jority representative of such employees in an appropriate col-
lective bargaining unit.” The stipulation of facts however, states
that the Union never offered to provide and never provided to
Respondent authorization cards or any other evidence of major-
ity status.
In Nova Plumbing, Inc., 336 NLRB 633 (2001), the Board
found the following language sufficient to establish majority
representative status under Section 9(a):
Based upon evidence presented to the Contractor by the Un-
ion, which evidence demonstrates that the Union represents
an uncoerced majority of the employees of the Contractor
. . . the Contractor hereby recognizes the Unions who are sig-
natory here as the sole and exclusive collective bargaining
representative of all employees.”
MADISON INDUSTRIES 1313
The Board further held in Nova Plumbing that once it was es-
tablished that the respondent-employer had recognized the un-
ion as a 9(a) representative, the union enjoyed a presumption of
majority status. When the collective-bargaining agreement
expires the presumption of majority status becomes a rebuttable
presumption. Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781,
786 (1996). To lawfully withdraw recognition a respondent-
employer must establish a good-faith uncertainty of the union’s
majority status. Allentown Mack Sales & Service v. NLRB, 522
U.S. 359 (1998). In the instant case, Respondent does not offer
any evidence of a good-faith uncertainty in September 2001,
when it withdrew recognition from the Union. Rather Respon-
dent seeks to deny the assertion of majority status it entered
into in July 1998.
In Central Illinois Construction, supra at 719–720 fns. 10
and 14, the Board held that an employer voluntarily granting
9(a) status may challenge the union’s majority status but only
within the 6-month limitation period set forth in Section 10(b) of
the Act. The Board reached the same conclusion in a representa-
tion case context in Casale Industries, 311 NLRB 951, 952
(1993). Congress enacted Section 10(b) of the Act to protect
continuing collective-bargaining relationships from attack. The 6-
month bar of Section 10(b) is designed to strengthen and defend
the “stability of bargaining relationships.” Bryan Mfg. Co. v.
NLRB, 362 U.S. 411, 425 (1960). The time limitation reflects the
balance drawn by Congress, “between the interest of employees
in redressing grievances and vindicating their statutory rights”
and the “interest in industrial peace which is the overall purpose
of the Act to secure.” Id. at 428. Thus, I find that Respondent
could not challenge (in 2001) its written agreement (in 1988) that
the Union had demonstrated majority status.
2. The refusal to furnish information
By letter dated September 7, 2001, the Local Unions requested
that Respondent provide an up-to-date list of employees includ-
ing their home addresses, phone numbers, rates of pay, and clas-
sifications as well as a list of Respondent’s jobs and current poli-
cies governing wages, hours, and working conditions.
Section 8(a)(5) of the Act makes it an unfair labor practice for
an employer to refuse to bargain collectively with the representa-
tives of his employees, subject to the bargaining unit provisions
of Section 9(a). The duty to bargain in good faith requires 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 “presumptively 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 rela-
tionship.” Graphics Communications Local 13 v. NLRB, 598
F.2d 267, 271 fn. 5 (D.C. Cir. 1959), 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 neces-
sary to a union’s bargaining obligation vis-a-vis its representation
of unit employees of that employer. White-Westinghouse Corp.,
259 NLRB 220 fn. 1 (1981). Whether the requested information
is relevant or needed to invoke a statutory obligation to provide it
is determined on a case-by-case basis. Id.
In this case, all of the information in question, an up-to-date
list of employees including their home addresses, phone num-
bers, rates of pay, and classifications as well as a list of Respon-
dent’s jobs and current policies governing wages, hours, and
working conditions, is presumptively relevant. Watkins Contract-
ing, Inc., 335 NLRB 222 (2001). As such, no showing of particu-
lar need is necessary
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union and the Local Unions are labor organizations
within the meaning of Section 2(5) of the Act.
3. By withdrawing recognition of the Union as the exclusive
bargaining representative of the bargaining unit employees, Re-
spondent violated Section 8(a)(1) and (5) of the Act.
4. Respondent has violated Section 8(a)(1) and (5) of the Act
by failing to provide the Union with relevant information consist-
ing of an up-to-date list of employees including their home ad-
dresses, phone numbers, rates of pay, and classifications as well
as a list of Respondent’s jobs and current policies governing
wages, hours, and working conditions
5. The above-unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor prac-
tices, I shall recommend that it be ordered to cease and desist
therefrom and take certain affirmative action to effectuate the
policies of the Act.
It is recommended that Respondent be ordered to recognize
and bargain with the Union as the majority collective-bargaining
representative of all employees in the appropriate bargaining unit.
I shall recommend that Respondent provide the Union with the
requested information consisting of an up-to-date list of employ-
ees including their home addresses, phone numbers, rates of pay,
and classifications as well as a list of Respondent’s jobs and cur-
rent policies governing wages, hours, and working conditions.
[Recommended Order omitted from publication.]