Morley Investments & Construction

National Labor Relations Board - Board Decisions

Apr 24, 2000

330 N.L.R.B. 1329 (N.L.R.B. 2000)

MORLEY INVESTMENTS & CONSTRUCTION 1329
Morley Investments and Construction, Inc. and
Building Trades Organizing Project. Case 28–
CA–14900
April 24, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND BRAME
On March 31, 1999, Administrative Law Judge Gerald
A. Wacknov issued the attached decision. The General
Counsel filed exceptions and a supporting brief.
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 brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.

ng
1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We agree with the judge’s dismissal of the complaint, which al-
leges that the Respondent violated Sec. 8(a)(5) and (1) of the Act by
failing and refusing to recognize and bargain with the Union. In so
doing, we rely only on the judge’s finding that the General Counsel
failed to establish that a majority of unit employees raised their hands
when asked by the Respondent’s operations manager, Roy Morley II,
on June 30, 1997, whether they had signed union authorization cards.
In making that finding the judge credited two of the General Counsel’s
witnesses, Jose Provencio (who testified that 9 or 11 employees raised
their hands) and Tom Singleton (who testified that 8 or 9 employees
raised their hands). However, the judge was unable to credit the testi-
mony of one employee over the testimony of the other and therefore
could not find conclusively that at least nine employees raised their
hands in response to the poll. Thus, even assuming, as argued by the
General Counsel that the unit on the date of the poll was comprised of
16, rather than 17, employees as found by the judge, the judge’s inabil-
ity to find on the basis of credibility that at least nine employees raised
their hands warrants a finding that the General Counsel has not carried
his burden of proving that the Union’s majority status was established
by the Respondent’s poll. See Blue Flash Express, 109 NLRB 591,
592 (1954).
Because we agree with the judge’s finding that the General Counsel
did not prove that the Union’s majority status was established by the
Respondent’s poll, we shall dismiss the complaint on that basis. Ac-
cordingly, we find it unnecessary to pass on the judge’s alternative
findings that (1) the General Counsel was precluded from proceeding in
this matter because of a settlement agreement in Case 28–CA–14619;
and (2) that the Board’s rationale in Tennessee Shell Co., 212 NLRB
193 (1974), petition for review denied sub nom. mem. Carpenters,
Southern Council of Industrial Workers v. NLRB, 515 F.2d 1018 (D.C.
Cir. 1975), requires dismissal of the complaint.
The General Counsel has renewed his motion to strike portions of
Respondent’s posthearing brief, on which the judge failed to rule. The
portions of that brief that the General Counsel requests be stricken
substantially involve the settlement bar issue. Because, as stated above,
we are not passing on that issue in dismissing the complaint, we deny
the General Counsel’s motion.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Nathan Albright, Esq., for the General Counsel.
Gary Burnett, Esq., of Las Vegas, Nevada, for the Respondent.
James E. Sala, Director of Organizing, Southern California-
Nevada Regional Counsel of Carpenters, of Las Vegas,
Nevada, for the Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice, a hearing in this matter was held before me in Las
Vegas, Nevada, on January 21, 1999. The charge was filed on
December 19, 1997, by Building Trades Organizing Project
(BTOP or the Union). On February 25, 1998, the Regional
Director for Region 28 of the National Labor Relations Board
(the Board) issued a complaint and notice of hearing alleging a
violation by Morley Investments and Construction, Inc. (Re-
spondent) of Section 8(a)(5) of the National Labor Relations
Act (the Act). The Respondent, in its answer, duly filed, denies
that it has violated the Act as alleged.
The parties were afforded a full opportunity to be heard, to
call, examine and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the General Counsel (the Gen-
eral Counsel) and counsel for the Respondent. On the entire
record, and based on my observation of the witnesses and
consideration of the briefs submitted, I make the followi
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Nevada corporation with its principal
place of business located in Las Vegas, Nevada, where it is
engaged in business as a construction contractor performing
concrete projects within the construction industry in and around
Las Vegas, Nevada. In the course and conduct of its business
operations the Respondent annually receives gross revenues in
excess of $500,000 and annually purchases and receives goods
and materials valued in excess of $50,000 from enterprises
located within the State of Nevada, which enterprises received
said goods and materials directly from points outside the State
of Nevada. On the basis of the foregoing, I find that the Re-
spondent is engaged in commerce or in an industry affecting
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that at all material times the Union,
an organization comprised of various individual labor organiza-
tions, has been a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are (1) whether
the matter raised by the complaint is inextricably related to a
prior Board case that has been settled, and that therefore the
Regional Office should be precluded from proceeding with the
instant matter, and (2) whether the Respondent has violated
330 NLRB No. 188
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1330
Section 8(a)(5) of the Act by failing and refusing to recognize
and bargain with the Union as the collective-bargaining agent
of the Respondent’s employees.
B. The Facts
On November 26, 1997, the Regional Director for Region 28
approved an all-party settlement agreement in Case 28–CA–
14619. The notice to employees that was required to be posted
pursuant to the terms of the settlement agreement is quite ex-
tensive, and resolves various alleged violations of Section
8(a)(1) and (3) of the Act, and contains, inter alia, the following
language:

WE WILL NOT poll our employees or interrogate our em-
ployees by asking them if they have signed union authoriza-
tion cards on behalf of the BUILDING TRADES
ORGANIZING PROJECT (herein called the Union), or
any other labor organization.

The settlement agreement contains the following language:

SCOPE OF THE AGREEMENT—This agreement settles
only the allegations in the above captioned case(s), and does
not constitute a settlement of any other case(s) or matters. It
does not preclude persons from filing charges, the General
Counsel from prosecuting complaints, or the Board and the
courts from finding violations with respect to matters which
precede the date of the approval of this agreement regardless
of whether such matters are known to the General Counsel or
are readily discoverable. The General Counsel reserves the
right to use the evidence obtained in the investigation and
prosecution of the above-captioned case(s) for any relevant
purpose in the litigation of this or any other case(s), and a
judge, the Board, and the courts may make findings of fact
and/or conclusions of law with respect to said evidence.

The aforementioned language contained in the notice to em-
ployees resolved an incident on June 30, 1997, during which
Roy Morley II, the Respondent’s operations manager and son
of the Respondent’s owner, Roy Morley Sr., asked certain as-
sembled employees whether they had signed union cards, and
wrote down the name of each employee who had raised his
hand affirming that he had signed a union card. Thereafter, on
August 6, 1997, the Union, by hand delivery, certified mail and
fax, delivered and sent the following letter to the Respondent:

The Building Trades Organizing Project is a workers’
advocacy organization comprised of over fifteen construc-
tion unions in the Las Vegas Area.
. . . .
We support constructive, harmonious, and fair rela-
tionships between management and labor. The ideal rela-
tionship between construction workers and their managers
is one of mutual trust and respect.
However, we believe you or your agents may have
violated this principle in the following manner.
It is our understanding that on or about June 30, 1997,
in Las Vegas, you or your agents personally polled your
employees as to whether they had signed union authoriza-
tion cards and/or supported a union. We would like to ad-
vise you that this act might constitute a violation of Sec-
tion 8(a)(1) and other subsections of the National Labor
Relations Act, as amended. In effect, your actions may
violate the basic rights American workers have to form,
join, or assist labor organizations.
We also understand that in conducting this poll, you
determined that a majority of your employees had signed
union authorization cards and/or support the union.
In doing so you have established by a method of your
own choice, the majority status of our unions under Sec-
tion 9(a) of the National Labor Relations Act. You have
saved your company and its employees the often lengthy
and arduous task of establishing a legal and binding bar-
gaining relationship.
Therefore, on behalf of the four unions named above,
we offer to commence good-faith collective bargaining
with you immediately. This collective bargaining will be
on the subjects of decent wages, good family health care
and retirement benefits, and other conditions of your em-
ployees’ work.
I sincerely believe this collective bargaining will bene-
fit both your company and its workers. Please contact me
at the above address or call [phone number omitted] within
seven (7) calendar days of your receipt of this letter to es-
tablish the time and place for our meeting.
Thank you for your attention to this matter. I look
forward to meeting and working with you and Morley
Construction.

While the record evidence shows that the Union did not re-
quest recognition and bargaining with the Respondent prior to
June 30, 1997, the parties entered into a stipulation in this mat-
ter, inter alia, as follows:

Respondent admits paragraph 5(e) of the complaint regarding
the Charging Party Union’s demand for recognition and bar-
gaining made in writing on or about August 6, 1997. Re-
spondent also asserts that between June 30, 1997, and con-
tinuing at least up and through August 6, 1997, that the
Charging Party Union has orally requested we engage in bar-
gaining by Respondent (sic) on several occasions, and Re-
spondent, through Roy Morley, has informed the Union, on
each such occasion, that this was fine but that the Charging
Party Union should contact Respondent’s counsel in order to
arrange a meeting between Respondent and the Charging
Party Union.1

During the investigation of the aforementioned case, Roy
Morley Sr. and Roy Morley II each submitted an affidavit to
the Regional Office dated October 27, 1997. Both affidavits
were introduced into evidence by the General Counsel. The
affidavit of Roy Morley Sr. states, in pertinent part, as follows:

That upon learning of the activities of the Building
Trades Organizing Project on behalf of the labor organiza-

1 The latter part of this stipulation beginning with, “Respondent also
asserts . . .” is confusing. It simply seems to mean that while the Re-
spondent may make such an assertion, the Union and the General
Counsel do not necessarily agree with it. The record evidence indicates
that in fact no union representative spoke with the Respondent’s man-
agement or made a demand for recognition until sometime after June
30, 1997, and moreover, that the first such demand was made on Au-
gust 6, 1997. Indeed, the Respondent’s August 6, 1997 letter, does not
refer to any prior demand. However, since the Respondent seems to
want to “assert” that a bargaining demand was made “between June 30,
1997, and continuing at least up and through August 6, 1997,” I accept
that assertion. Nevertheless, there is no evidence that the demand was
made prior to or even on the same day as the Respondent’s interroga-
tion of its employees. Therefore, I find that the demand was made
subsequent to June 30, 1997.
MORLEY INVESTMENTS & CONSTRUCTION 1331
tions, I thought it would do no harm to meet with the un-
ion folks directly, if that was the wish of my employees.
Therefore, I instructed Roy R. Morley II to find out if, in-
deed, our employees desired representation by these labor
unions, and, if so, I would consider meeting and discuss-
ing whatever was on their minds.
That neither I, nor any member of my staff or my su-
perintendents, ever threatened any reprisal, retaliation, or
any consequence whatsoever to our employees for their
solicitation of union representation.
That on Form NLRB 501, the labor union organizer
indicates our employees desire that the Company engage
in collective bargaining with these sundry unions, and
therefore, claims our failure to engage in such collective
bargaining is violative of statutorily protected rights.
Since the Company has never been apprised of such a de-
sire on the part of our employees, either in writing or
orally, the alleged abrogation of rights is a legal impossi-
bility.

The affidavit of Roy Morley II states, in pertinent part, as
follows:

That no such interference, restraint, or coercion was
ever exercised or exerted over any employee of the Com-
pany at any time.
That my reason for inquiring of our employees as to
whether a preponderance of them desired labor union rep-
resentation was only for the purpose of facilitating an in-
troduction of the two parties. In other words, if our em-
ployees wanted representation, I needed to know in order
that I set up a meeting between our management and their
representatives.
That I did not “poll” our employees. I simply asked a
blanket question and for a show of hands from the group,
regarding their desires for a meeting regarding work con-
ditions and whether they wanted to meet with or without
union representatives.

And on October 29, 1997, Roy Morley II submitted another
affidavit. This one, consisting of seven typewritten pages, was
taken by a Board agent and states, in pertinent part, as follows:

On or about June 30, 1997 . . . I visited a Morley jobsite lo-
cated in Henderson, Nevada. I gathered the employees for a
quick meeting and asked for a show of hands as to how many
of them had signed union authorization cards. I believe that
of a total of 8 combined Morley employees, 5 had indicated
by raising their hand that they had signed union authorization
cards. I do not recall asking the employees why they had
signed union authorization cards. I would like to note that
Morley had a total complement of about 24 employees at this
time. Moreover, 3 of the 8 employees I questioned about
signing a union card were either Morley managers or supervi-
sors. As I have indicated in attachment A,[2] my only reason
for asking employees if they desired union representation was
to determine if a preponderance of our employees desired that
management meet with or without union representatives re-
garding work conditions and/or setup a meeting between our
management and their representatives to discuss employee
working conditions. I deny that I ever threatened employees
2 “Attachment A” was apparently Morley’s prior October 27, 1997
affidavit.
with reprisal or retaliation because they engaged in union or-
ganizing activities or signed union authorization cards on be-
half of the union. I deny that I ever told employees that the
company would close down if the union was voted in.

Former employee Tom Singleton testified that on June 30,
1997, he was working at a jobsite along with “at least nine or
10 or more, at least that” rank and file employees, excluding
foremen or supervisors, when Roy Moryley II came out to the
site and assembled the employees for a meeting after work that
day. Morley, according to Singleton, simply asked every em-
ployee who had signed a union card to raise his hand. Then, he
again asked each person who had raised his hand whether he
had signed a union card. As they answered “yes” he wrote
down their name. Singleton testified that “about eight or nine”
employees raised their hand. He also testified that he has not
been asked about this matter until about 2 weeks prior to his
testimony, that is some 19 months after the event in question.
The meeting lasted about 5 or 10 minutes at the most. Morley
did not say why he was asking for a show of hands.
Former employee Jose Provencio3 testified regarding the
aforementioned meeting. According to Provencio there were
“like nine, 11 I think” rank and file employees present, and “all
the workers” raised their hands in response to Morley’s ques-
tion. Then Morley wrote something on a piece of paper.
Provencio testified that he believed there were a total of around
15 individuals at the meeting. There was also a discussion of
insurance and other matters, and the meeting lasted about 20
minutes. This was the first meeting that was held about union
representation, and Provencio affirmed that at that point in time
he did not “get the impression from any supervisor that Morley
Construction was against union representation and that if you
participated in that [show of hands] they were going to retali-
ate.” However, after the show of hands was recorded, according
to Provencio, Morley told the employees “that the Union is no
good because they don’t have enough jobs for everybody, you
know, because there was a lot of people . . . on the list to go to
work for [the] Union.” Provencio is simply relying on his
memory of the event.
It was stipulated that if it is found that the Respondent has a
bargaining obligation, the appropriate union for collective bar-
gaining is as follows:

All full time and regular part-time carpenters, finishers, and
laborers employed by the Respondent at its jobsites in and
around Las Vegas, Nevada, excluding all other employees, of-
fice clerical employees, estimators, professional employees,
guards, and supervisors as defined in the Act.

It was further admitted by the Respondent that as of June 30,
1997, there were 17 unit employees employed by the Respon-
dent.
Roy Morley II testified that he went out to the jobsite on
June 30, 1997, on his own volition and was not instructed to
hold such a meeting. He recalls that there were eight rank and
file employees present. He asked them, “Hey, guys, I’d like to
know who signed the union cards.” He did this, “just for my
own information,” and testified that he wanted to see how many
people had signed cards “to see if we were bargaining with the
Union or with my employees.” He wrote down the names of
those who signed cards, and said, “Thanks a lot guys. See you
3 Provencio was a discriminatee who received backpay as a result of
the settlement in the prior matter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1332
tomorrow.” Then he left. He recalled that one or two of the
eight employees did not raise their hand. He threw the list
away because “I didn’t care about it.” The meeting lasted no
more than 5 minutes. This was the only item of business, and
there was no other discussion about the Union. Morley further
testified that of the total nonsupervisory employee complement
as of June 30, 1997, only three to five of those individuals are
currently employed.
C. Analysis and Conclusions
The Respondent has consistently maintained that the subject
matter of this proceeding has been resolved in the prior pro-
ceeding pursuant to the terms of the aforementioned settlement
agreement, and that therefore the matter is res judicata. It is
apparently the position of the General Counsel that only the
matter of the unlawful polling of employees regarding their
signing of union authorization cards, alleged to be violative of
Section 8(a)(1) of the Act, has been resolved in the prior pro-
ceeding, and that the issue involving recognition of the Union,
albeit as a direct result of the very same polling, is a separate
and distinct matter under Section 8(a)(5) of the Act and was not
resolved in the prior proceeding.
The record evidence strongly indicates that, in fact, the rec-
ognition issue was one of the matters that was under considera-
tion by the Regional Office during the investigation of the prior
proceeding. Thus, on August 6, 1997, the Union delivered to
the Respondent a detailed account of its unlawful polling,
stated that, “[w]e would like to advise you that this act might
constitute a violation of Section 8(a)(1) and other subsections
of the National Labor Relations Act, as amended,” and de-
manded recognition and bargaining. According to the com-
plaint in that proceeding the Union filed the initial charge in
Case 28–CA–14619 on August 26, 1997, and subsequently, on
August 27, 1997, and again on October 31, 1997, filed
amended charges.
During the investigative stage of that proceeding, Roy Mor-
ley Sr. submitted an affidavit, dated October 27, 1997, stating,
inter alia:

That on Form NLRB 501,[4] the labor union organizer indi-
cates our employees desire that the Company engage in col-
lective bargaining with these sundry unions, and therefore,
claims our failure to engage in such collective bargaining is
violative of statutorily protected rights. Since the Company
has never been apprised of such a desire on the part of our
employees, either in writing or orally, the alleged abrogation
of rights is a legal impossibility.

Further, the affidavit of Roy Morley II taken by a Board
agent on October 29, 1997, goes beyond the Section 8(a)(1)
polling issue. Thus, it states, inter alia:

On or about June 30, 1997 . . . I visited a Morley jobsite lo-
cated in Henderson, Nevada. I gathered the employees for a
quick meeting and asked for a show of hands as to how many
of them had signed union authorization cards. I believe that
of a total of 8 combined Morley employees, 5 had indicated
by raising their hand that they had signed union authorization
cards. I do not recall asking the employees why they had
signed union authorization cards. I would like to note that
Morley had a total complement of about 24 employees at this

4 This is the standard “charge against employer” form utilized by
charging parties to bring charges against employers.
time. Moreover, 3 of the 8 employees I questioned about
signing a union card were either Morley managers or supervi-
sors. As I have indicated in Attachment A, my only reason
for asking employees if they desired union representation was
to determine if a preponderance of our employees desired that
management meet with or without union representatives re-
garding work conditions and/or set up a meeting between our
management and their representatives to discuss employee
working conditions.

From the foregoing it seems reasonable to conclude that the
recognition issue was a matter that was investigated during the
prior proceeding and, indeed, may even have been alleged in a
charge or amended charge filed by the Union. I so find.5
The scope of agreement section of the settlement agreement
in the prior proceeding contains the following language:

SCOPE OF THE AGREEMENT—This Agreement settles
only the allegations in the above captioned case(s), and does
not constitute a settlement of any other case(s) or matters.

I conclude that one of the “allegations” in that proceeding was
the recognition issue. Thus, it appears that such a specific alle-
gation was either embodied in a charge or amended charge,
and/or the Respondent was reasonably led to believe that such
an allegation had been advanced as the Board agent taking the
affidavit of Roy Morley II included facts that only seem rele-
vant to the recognition issue.6 Accordingly, I find that the rec-
ognition issue either was or was reasonably believed to be an
“allegation” in the prior proceeding, and that therefore the
Respondent was relying on a reasonable belief that that issue
had been laid to rest by the settlement of that case. It seems
fundamentally unfair to require the Respondent, under these
circumstances, to litigate the matter anew. Accordingly, I shall
dismiss the instant complaint on this basis.
I find that on June 30, 1997, the date that Roy Morley II pur-
suant to his father’s instruction, counted and wrote down the
names of employees who had signed union authorization cards,
the Respondent’s employee complement in the appropriate unit
consisted of 17 unit employees. The testimony of employees
Singleton and Provencio is not consistent: Singleton testified
that, “about eight or nine” employees raised their hands, and
Provencio testified that, “like 9, 11 I think” raised their hands.
The General Counsel subpoenaed the relevant records from the
Respondent which would show the jobs on which they were
working at times material herein, and the Respondent has not
produced the said documents. Moreover, Roy Morley II testi-
fied that the timecards would show which employees were
working at each particular jobsite on June 30, 1997. While the
fact that the Respondent did not produce the subpoenaed mate-
rials requires that the General Counsel’s evidence be credited, it
matters a great deal whether only eight employees, or nine or
more employees, raised their hands; if only eight raised their
hands, then no majority has been established. Under the cir-
cumstances, and given the fact that both Singleton and Proven-
cio were recollecting an event that took place some 19 months
5 Whether or not this is correct is a matter of record that would seem
to be readily verifiable, and if incorrect, the General Counsel may so
advise the Board in its exceptions.
6 I recognize that it is possible that Morley, while giving his affida-
vit, may have insisted that the Board agent include information which
the Board agent deemed irrelevant to the investigation; however, it is
clear that Morley, at least, was concerned that the recognition issue was
viable at the time.
MORLEY INVESTMENTS & CONSTRUCTION 1333
prior to the hearing, I am unable to credit one witness over the
other.7
Assuming arguendo that a majority of the Respondent’s em-
ployees did raise their hands, the General Counsel maintains
that the Respondent thereafter violated Section 8(a)(5) of the
Act by failing and refusing to recognize and bargain with the
union. In support of this contention the General Counsel relies
on Sullivan Electric Co., 199 NLRB 809 (1972),8 wherein the
Board found as follows:

In sum, it is abundantly clear that the Respondent’s employ-
ees voluntarily and freely designated the Union as their repre-
sentative for the purposes of collective bargaining; that the
Union made a clear and proper demand for recognition, a de-
mand which was communicated to and considered by respon-
sible officials of the Respondent; and that the Respondent as-
sured itself through interrogation of its employees that a sub-
stantial majority of them had designated the Union as their
representative. These circumstances give rise to a bargaining
obligation. Accordingly, we find that the Respondent violated
the Act by refusing to recognize and bargain with the Union.

In the instant case however, the General Counsel, recognizing
that Sullivan Electric seems to require that the Union’s demand
for recognition precede the Respondent’s polling of its employ-
ees, relies on dictum in a subsequent case, Tennessee Shell Co.,
212 NLRB 193 (1974). In that case, like the instant case, the
respondent’s interrogations preceded the union’s request for
recognition. The Board majority, with a vigorous dissent by
two Board Members, determined that it should not apply the
Sullivan Electric doctrine for the following reasons:

Respondent learned in the course of its interrogations that
possibly 11 out of the 21 unit employees appeared to support
the Union, but had reason to believe that there was some
question as to the allegiance of 1 or 2 out of that slender ma-
jority. Had Respondent gone on to question enough addi-
tional employees to establish by that means an unmistakable
majority preference for the Union, we would then have to
consider whether the logic and policy of the Sullivan Electric
doctrine would create a duty to bargain once the demand for
recognition was made, even though no demand had been
made at the time of the interrogation.

And at fn. 19 of this decision, the Board states as follows:

We do not “suggest,” as our dissenting colleagues state, that
Sullivan Electric is inapplicable where the interrogations pre-
cede the demand for recognition. On the contrary, we leave to

7 I specifically discredit the testimony of Roy Morley II that only
five or six employees raised their hands.
8 See also, Crest Industries Corp., 276 NLRB 490 (1985).
a more appropriate case the determination as to what circum-
stances, if any, might justify applying Sullivan Electric to
such a situation. We point out, however, that in examining
that question we should not be concerned with whether the in-
terrogations themselves are lawful or unlawful, and our in-
quiry into their purpose or motive should be limited to deter-
mining whether they constitute an employer-selected substi-
tute for a Board election, which is the proper inquiry under
Sullivan Electric.

According to the General Counsel, the instant case is the
proper vehicle for presenting the issue that the Board declined
to answer in Tennessee Shell. I do not agree. In Tennessee
Shell it seems the Board majority was anticipating a case
wherein the evidence established an “unmistakable majority
preference for the Union” so that it could clearly determine
whether the Sullivan Electric doctrine should be extended to
interrogations that predate the demand for recognition. Here, as
in Tennessee Shell, the Union’s majority status is far from
clear, and is certainly not “unmistakable.” I therefore find,
contrary to the General Counsel’s contention, that the Board’s
rationale in Tennessee Shell mandates the dismissal of this mat-
ter.
Further, as noted above, I have determined that the settle-
ment agreement entered into in the prior proceeding is disposi-
tive of this matter.
On the basis of the foregoing, I shall recommend that the
complaint be dismissed in its entirety.
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 is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has not violated Section 8(a)(5) of the
Act as alleged.
On these findings of fact and conclusions of law, I issue the
following recommended 9
ORDER
The complaint is dismissed in its entirety.

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.