Nova Plumbing, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2001

336 N.L.R.B. 633 (N.L.R.B. 2001)

NOVA PLUMBING, INC. 633
Nova Plumbing, Inc. and Southern California Pipe
Trades District Council No. 16, United Associa-
tion of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada, AFL–CIO. Case 21–CA–
32275
September 30, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On May 10, 1999, Administrative Law Judge Clifford
H. Anderson issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the Re-
spondent filed an answering brief, and the General Coun-
sel filed a reply. The Respondent filed cross-exceptions
and a supporting brief, the General Counsel filed an an-
swering brief, and the Respondent filed a reply.
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, findings, and conclusions only
to the extent consistent with this Decision and Order.
Resolution of the unfair labor practice allegations in
this case requires us to examine whether the bargaining
agreement entered into between the Union and the Re-
spondent established an 8(f) or 9(a) relationship. Apply-
ing the test set forth in our recent decision in Staunton
Fuel & Material, 335 NLRB 717 (2001), we hold that
the collective-bargaining agreement entered into between
the parties unequivocally established that the Union at-
tained the status of majority bargaining representative
under Section 9(a). Therefore, we find that the Respon-
dent’s withdrawal of recognition from, and refusal to
meet with, the Union, as well as the Respondent’s cessa-
tion of contributions to certain contractually established
funds and use of the Union’s referral system violated
Section 8(a)(5) and (1) of the Act.
Facts
The Respondent is a construction industry employer
engaged in the business of residential plumbing since
1994. Prior to 1994, Rodney Robbins, the Respondent’s
president, served as vice president of Calta, a plumbing
contracting company owned by Robbins’ father. Calta
recognized the Southern California Pipe Trades District
Council No. 16, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, AFL–CIO (the Union), as
the representative of its employees and had a contract
with the Union when Calta was an operating business.
When Calta ceased operations, the Respondent opened
its business, hiring many former Calta employees.
In October 1995, the parties entered into an agreement
(the Agreement). The Agreement included a master la-
bor agreement (the MLA) and a residential addendum
agreement (the Addendum).1 The MLA is a collective-
bargaining agreement between various contractors and
the Union. The MLA contains recognition language that
provides that, based on independently verified evidence
presented to the covered contractor demonstrating that
the Union represents an uncoerced majority of the con-
tractor’s employees, the contractor recognizes the Union
as the sole and exclusive collective-bargaining represen-
tative of all employees of the contractor performing
plumbing and piping work. The MLA contains a signa-
ture page, signed by Robbins. The Addendum, also
signed by Robbins, provides that the Agreement “shall
remain in full force and effect through June 30, 1997 and
shall be extended only by the written agreement of the
parties.”
On May 9, 1997, the Respondent sent the Union a let-
ter stating that it was terminating the Agreement effec-
tive June 30, 1997, and that it had no obligation to bar-
gain for a successor agreement. The Union sent the Re-
spondent a letter dated May 12, 1997, requesting
bargaining for a new agreement. The parties agreed to a
60-day extension of the Agreement. Thereafter, the Re-
spondent informed the Union that it would not agree to
any further extensions and would not continue bargain-
ing. The Respondent also stopped contributing to certain
contractually established trust funds and ceased using the
Union’s hiring hall referral service. When the Respon-
dent withdrew recognition, it had approximately 100
employees.
The complaint alleges that the Respondent violated
Section 8(a)(5) and (1) of the Act by withdrawing recog-
nition from the Union as the exclusive bargaining repre-
sentative, by ceasing to contribute to certain contractu-
ally required trust funds, by ceasing to use the Union’s
hiring hall referral service, and by failing and refusing to
meet and bargain with the Union.
Judge’s Decision
The judge determined that the Respondent did not vio-
late the Act by withdrawing recognition and refusing to
bargain with the Union, and he dismissed the 8(a)(5)
complaint. In doing so, the judge assumed, without de-
ciding, that the Agreement created a 9(a) relationship
between the Respondent and the Union. The judge de-
termined that the Respondent possessed, at all material

1 The parties agree that this agreement began the bargaining relation-
ship involved herein. No one argues that it began under Calta.
336 NLRB No. 61
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 634
times, a good-faith doubt that a majority of unit employ-
ees did not support the Union.2 The judge credited testi-
mony by Robbins and the Respondent’s foremen and
superintendents that the judge found sufficient to estab-
lish that the employees did not support the Union and did
not desire union representation. Therefore, the Respon-
dent was privileged to withdraw recognition and to cease
bargaining with the Union when the Agreement expired.
The Parties’ Contentions
The parties disagree as to the nature of their relation-
ship. The General Counsel argues that Section 8(f) does
not control the parties’ relationship and that the Union is
the exclusive 9(a) representative of the unit employees.
Specifically, the General Counsel contends that the
Agreement’s language shows that the Union demanded
9(a) recognition and that the Respondent voluntarily
granted such recognition. The General Counsel also
claims that Section 10(b) precludes the Respondent from
questioning whether the Union enjoyed majority status
when the Respondent signed the Agreement.
According to the General Counsel, testimony regard-
ing the employees’ disaffection with the Union at the
time of the Agreement’s formation is irrelevant to
whether the Union possessed majority support when the
Agreement expired. The General Counsel also argues
that the Respondent’s claim of a good-faith uncertainty
regarding the Union’s support is an after-the-fact defense
and that the Respondent’s real reason for withdrawal of
recognition is because the Union did not organize the
Respondent’s competitors.
The Respondent argues that the Union never de-
manded 9(a) recognition and that the Respondent did not
intend to enter into a 9(a) relationship. Rather, the Re-
spondent contends that the Agreement created an 8(f)
relationship and, therefore, the Respondent was free to
withdraw from the Agreement when it expired. Alterna-
tively, the Respondent argues that, if Section 9(a) gov-
erns its relationship with the Union, at no time, past or
present, did the Union ever enjoy majority status. To
support this claim, Respondent relies on testimony by
Robbins and certain superintendents and managers that
the employees did not support the Union at the time the
Respondent signed the Agreement and that they ex-
pressed displeasure with the Union throughout the dura-
tion of the Agreement. The Respondent claims that, be-
cause it possessed a good-faith uncertainty regarding the

2 In his decision, the judge phrases the test as whether the Respon-
dent had a good-faith “doubt” that the Union represented a majority of
its unit employees. The proper test, however, as set forth in Allentown
Mack Sales & Service v. NLRB, 522 U.S. 359 (1998), is whether the
Respondent had a good-faith “uncertainty” about whether the Union
enjoyed majority support. Id. at 367.
Union’s majority support, it could withdraw from the
Agreement at any time.
Discussion
1. 9(a) status
We find based on the standards set forth by this Board
and the courts that the parties’ collective-bargaining
agreement unequivocally shows that they intended to
create a 9(a) relationship. We also find, in disagreement
with the judge, that the Respondent did not have a good-
faith uncertainty of the Union’s majority status. Accord-
ingly, we find that the Respondent violated the Act as
alleged.
The standards set by the Board in Staunton Fuel &
Material, supra, govern the Board’s determination of
whether the parties intended through their contract to
create a 9(a) relationship. In Staunton Fuel & Material,
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), and NLRB v. Oklahoma Installation
Co., 219 F.3d 1160 (10th Cir. 2000). Those standards
provide that the parties’ recognition agreement or con-
tract will independently be sufficient to establish the un-
ion’s 9(a) status where the language unequivocally indi-
cates that (1) the union requested recognition as the ma-
jority or as the 9(a) representative of the unit employees;
(2) the employer recognized the union as the majority or
as the 9(a) representative; and (3) the employer’s recog-
nition was based on the union’s having shown, or having
offered to show, evidence of its majority support. 335
NLRB 717, 721.
The full text of the parties’ recognition clause here
states as follows:

Based upon evidence presented to the Contractor
by the Union, which evidence demonstrates that the
Union represents an uncoerced majority of the em-
ployees of the Contractor, and which has been inde-
pendently verified by a Certified Public Accounting
firm satisfactory to the Contractor, the Contractor
hereby recognizes the Unions who are signatory
hereto as the sole and exclusive collective bargain-
ing representative of all employees of the Contractor
performing Plumbing and Piping work as defined in
this Agreement.

Reading this provision as a whole leaves no reasonable
doubt that the parties intended a 9(a) relationship. It
clearly meets the standards set forth by the Board in
Staunton Fuel & Material. Although it does not specifi-
cally state that the Union requested recognition, it states
that the Respondent granted recognition based on evi-
dence submitted by the Union. This clearly indicates that
NOVA PLUMBING, INC. 635
the Union requested recognition from the Respondent.
See Staunton Fuel & Material, supra at 721. It also
clearly states that the Respondent recognized the Union
as the majority representative. And it specifically states
that the recognition was based on evidence submitted by
the Union to the Respondent that the Union represents a
majority of the employees. Thus, under the standards
explicated in Staunton Fuel & Material, the parties have
clearly set forth their intent to create a relationship au-
thorized by Section 9(a) of the Act.
Based on dicta in Staunton Fuel & Material, however,
our colleague faults the parties for stating that the evi-
dence submitted by the Union and accepted by the Re-
spondent was evidence that the Union represented a ma-
jority of the employees, rather than evidence that the
Union had the support of or was authorized to represent
a majority. In the context of the entire recognition provi-
sion, our colleague’s parsing of its language clearly ex-
alts form over substance. The provision explicitly states
that a certified public accounting firm has verified that
the Union in fact represents an uncoerced majority of the
Respondent’s employees. This statement linking the
assertion of majority representation with verification of
the evidence establishing majority representation has no
apparent meaning, in a legal or practical context, other
than that the Respondent has verified to its satisfaction
that the Union has majority support. What other pur-
pose, apart from establishing proof of a 9(a) relationship,
would explain the reference to verification of evidence of
majority? It does not matter whether the Union has at-
tained majority support if the only relationship the parties
were seeking was an 8(f) relationship. Triple C Mainte-
nance, Inc., 219 F.3d at 1155 (Sec. 8(f) allows an em-
ployer primarily engaged in the building and construc-
tion industry to enter into prehire agreements containing
union-security clauses regardless of whether the union
represents a majority of the employer’s employees).
Our colleague claims that a reasonable interpretation
of the language “independently verified” is that an inde-
pendent source verified that the Union merely represents
the employees, not that the Union represents a majority
of the employees. That interpretation is not only
strained, it is absurd. What possible purpose would be
served by having a certified public accounting firm ver-
ify merely that the Union “represents” the employees?3

3 Our colleague vainly tries to analogize the situation to that pre-
sented in Oklahoma Installation Co., 219 F.3d at 1165, where the court
explained that the phrase “the union has submitted . . . that [it] repre-
sents a majority” could logically be read as simply meaning that the
union asserted that it represents a majority. That interpretation will not
work here, however, because the Union did not merely “represent” that
it represents the employees, as our colleague would have it. Rather, the
Union stated that “evidence demonstrates” that the Union represents an
There is no ambiguity regarding each party’s intent, and
we fail to understand how this provision can be inter-
preted to mean anything other than that the Union has
unambiguously demanded recognition as the employees’
9(a) representative and the Respondent has unambigu-
ously accepted it as such.4
In Staunton Fuel & Material, the Board explicitly ac-
cepted the standards set by the Tenth Circuit for deter-
mining whether parties, by their contract language, in-
tended to establish a 9(a) relationship. See Staunton Fuel
& Material, supra at 721, citing NLRB v. Triple C Main-
tenance, Inc., supra, and NLRB v. Oklahoma Installation
Co., supra. Nowhere in those two decisions does the
Tenth Circuit state that the failure of the parties’ contract
to use certain words is fatal to a finding that the parties
intended to create a 9(a) relationship regardless of the
intent shown by other wording in their agreement. To
the contrary, the court held that the absence of any spe-
cific reference to Section 9(a) is not fatal if the rest of the
agreement conclusively notifies the parties that a 9(a)
relationship is intended. Oklahoma Installation Co., 219
F.3d at 1165; and Triple C Maintenance, Inc., 219 F.3d
at 1155. See also Sheet Metal Workers Local 19 v. Herre
Bros., 201 F.3d 231, 242 (3d Cir. 1999). The reasoning
of the Third Circuit in Sheet Metal Workers, which the
Tenth Circuit specifically adopted in Triple C Mainte-
nance, Inc., 219 F.3d at 1155, is particularly illustrative
of this approach. As in this case, the parties’ contract
provided that the union “represents” a majority of the
employees rather than saying that it has the “support” of
a majority, and the contract did not directly reference
Section 9(a). The court found that the parties had none-
theless made clear that they intended a 9(a) relationship.
This was because the contract provided, in conjunction
with the statement that the union represented a majority
of the employees, that the employer recognized the union
until the union loses its status as the employees’ exclu-

uncoerced majority and a certified public accounting firm confirmed
that evidence. The Union does not need a certified public accounting
firm to prove that it simply said, or asserted, that it represents the em-
ployees, and no one could reasonably assume that the Union would
engage such a firm to do something so pointless.
4 Bright line rules must be applied using common sense. Requiring
the parties to have certain “magic words” in their agreement, however,
as a prerequisite to finding that the agreement creates a 9(a) relation-
ship, while 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. Our colleague should heed the words
of former Member Johansen, dissenting in J & R Tile, 291 NLRB 1034,
1038 (1988), where he warned against applying an analysis for deter-
mining whether a contract creates a 9(a) relationship that “exalts form
over substance and imposes on the construction industry a standard of
legal punctiliousness that we in the legal profession should eschew.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 636
sive representative as a result of an NLRB election. See
Herre Bros., 201 F.3d at 242. Likewise, in this case,
even though the contract uses the word “represents”
rather than the magic words preferred by our colleague, it
clearly states that the evidence that the Union “repre-
sents” a majority was verified by a certified public ac-
counting firm. Considering all the words of the provi-
sion, as the court did in the Sheet Metal Workers case,
there can be no doubt that it was intended to create a 9(a)
relationship, despite the fact that it used the word “repre-
sents” rather than other, more specific language. In at-
tempting to discern the parties’ intent, the approach of
the Tenth and Third Circuits, and thus of the Board, is to
avoid fixation on the presence or absence of certain
words, and the application of arbitrary or overly technical
rules of contract interpretation. By holding that the par-
ties have failed to meet his exacting standards of termi-
nology in this case, our colleague has fallen into that
very trap.
For the above reasons, we find that the parties’ con-
tract cannot reasonably be construed as creating an 8(f)
relationship, and find instead that it unequivocally indi-
cates that the Union attained 9(a) status. Accordingly,
we find that when the Respondent signed the parties’
agreement on October 17, 1995, a 9(a) relationship was
created.
2. Respondent’s failure to establish good-faith uncer-
tainty of Union’s majority support
By proving that the Respondent recognized the Union
as a 9(a) representative, the Union enjoys a rebuttable
presumption of support from a majority of bargaining
unit employees. See Pekowski Enter, Inc., 327 NLRB
413, 426 (1999). When the collective-bargaining agree-
ment ends, the presumption of majority status becomes a
rebuttable one. Auciello Iron Works, Inc., 517 U.S. 781,
786 (1996). The Respondent can overcome this pre-
sumption by showing that the employer, at the time of its
refusal to bargain, had a good-faith uncertainty, “founded
on a sufficient objective basis,” of the Union’s majority
support. NLRB v. Curtin Matheson Scientific, Inc., 494
U.S. 775, 778 (1990).
While this case was pending, the Board issued Levitz,
333 NLRB 717 (2001), in which the Board “recon-
sider[ed] whether, and under what circumstances, an
employer may lawfully withdraw recognition unilaterally
from an incumbent union.” In that case, the Board over-
ruled Celanese Corp., 95 NLRB 664 (1951), insofar as it
permitted an employer to withdraw recognition from an
incumbent union on the basis of a good-faith uncertainty
of the union’s continued majority status. In Levitz, the
Board held that “an employer may unilaterally withdraw
recognition from an incumbent union only where the
union has actually lost the support of the majority of the
bargaining unit employees.” However, the Board also
held that its analysis and conclusions in that case would
only be applied prospectively. “[A]ll pending cases in-
volving withdrawals of recognition [will be decided]
under existing law: the ‘good faith uncertainty’ standard
as explicated by the Supreme Court” in Allentown Mack
Sales & Service v. NLRB, 522 U.S. 359 (1998). Thus, in
evaluating the Respondent’s assertion of good-faith un-
certainty, we will apply the standard set forth in Allen-
town Mack. In that case, the Supreme Court explained
that “doubt” meant “uncertainty,” so that the test is
phrased in terms of whether the employer “lacked a
genuine reasonable uncertainty about whether [the Un-
ion] enjoyed the continuing support of a majority of unit
employees.”
In Allentown Mack, the Supreme Court found that the
evidence supported the respondent’s assertion of its
good-faith doubt of majority support. Such evidence
consisted of: (1) a statement by the union’s steward to
the respondent’s manager that the union lacked majority
support; (2) a concession by the union that reliable in-
formation showed that 7 of the 32 unit employees did not
support the union; (3) a statement by an employee that
“he was not being represented for the $35 he was pay-
ing;” and (4) a statement by employee Bloch to a man-
ager that the entire night shift did not want the union. In
crediting the statements, the Court stated that:

Unsubstantiated assertions that other employees do
not support the union certainly do not establish the
fact of that disfavor with the degree of reliability or-
dinarily demanded in legal proceedings. But . . . it is
not the fact of disfavor that is at issue . . . but rather
the existence of a reasonable uncertainty on the part
of the employer regarding that fact. On that issue,
absent some reason for the employer to know that
Bloch had no basis for his information, or that Bloch
was lying, reason demands that the statement be
given considerable weight.

Id. at 369–370 (emphasis in original). The Court also
found good reason for the Respondent to give “great cre-
dence” to the union steward’s assertion that the union
lacked support as he was “not hostile to the union and
was in a good position to assess antiunion sentiment.”
Id. at 371. The Court concluded that the evidence was
sufficient for the respondent to develop a good-faith un-
certainty about the union’s status.
In the instant case, the evidence that the judge found to
support the Respondent’s assertion of a good-faith doubt
is easily distinguishable from the evidence supporting the
employer’s position in Allentown Mack. Unlike the evi-
NOVA PLUMBING, INC. 637
dence in Allentown Mack, which identified specific em-
ployees who disfavored union representation, the evi-
dence in the present case is vague and fails to provide the
identity of the employees who allegedly expressed their
dislike for Union representation. The information is also
stale. See NLRB v. Curtin Matheson Scientific, Inc., 494
U.S. at 778 (evidence of employee disaffection must be
close in time to the withdrawal of recognition); Auciello
Iron Works, Inc., 517 U.S. at 786–787 (same).
The Respondent presented evidence from its president
Rodney Robbins, who made the decision to withdraw
recognition, six of its superintendents and foremen, and
Robbins’ stepmother Gerry Robbins, who is the Respon-
dent’s office manager. Robbins testified that his infor-
mation regarding the employees’ purported lack of inter-
est in being represented by the Union came from these
seven individuals rather than directly from the other unit
employees, and therefore we must examine the informa-
tion regarding employee sentiment that these seven indi-
viduals passed on to Robbins.
Superintendent Eckroth admitted that he never even
told Robbins of his conversations with his crew. Fur-
thermore, his testimony was vague (he merely testified
that he could not remember any employees “jumping at
the chance” to join the Union), and he was unable to
name any specific employee he had spoken with or relate
any specific conversations. Superintendent Saldana left
the Respondent’s employ in February 1997, almost 5
months before the Respondent withdrew recognition.
Saldana admitted that the information regarding em-
ployee feelings toward the Union was conveyed to Rob-
bins in late 1995. Thus, this information was clearly
stale, especially since there was approximately a 50-
percent employee turnover rate between late 1995 and
early 1997. In his testimony he also merely claimed that
the employees told him that they did not want to join the
Union because they did not want to pay dues. The Board
has held that employee statements that they do not want
to pay union dues do not establish that the employees do
not wish to be represented by a union. R.J.B. Knits, 309
NLRB 201, 206 (1992). Foreman Banks testified that he
had spoken with only six or so employees concerning
their feelings toward the Union,5 and could say only that
they did not want to be in the Union, rather than that they
did not want the Union to represent them. Further, he
was unsure whether he had even passed this information
on to Robbins. Foreman Leonardo’s testimony concern-
ing employee sentiments toward the Union was based on
conversations with employees in 1995, and thus was
stale. His testimony was merely that three employees did

5 The approximate size of the unit is 100 employees.
not want to join the Union because they did not want to
pay dues. Foreman Hall’s testimony involved conversa-
tions with employees in late 1995 and early 1996, and
therefore was once again stale. Hall also did not mention
whether he had provided this information to Robbins.
Foreman Thomas admitted that he had not talked with
employees since the contract was signed in October
1995, and thus his information was stale as well. Finally,
Office Manager Gerry Robbins testified that the employ-
ees she had talked with merely asked her why they had to
join the Union. She did not testify that the employees
said that they did not want the Union to represent them.
Robbins’ testimony that he believed that the employ-
ees did not support the Union gives little credence to the
Respondent’s claim of a good-faith uncertainty. Unlike
the union steward in Allentown Mack, whose testimony
concerning lack of union support constituted a statement
against the Union’s own interest, Robbins, as the Re-
spondent’s president, provided self-serving testimony
that supported the Respondent’s interest, i.e., the desire
to withdraw recognition. Thus, the Respondent’s evi-
dence that it possessed a good-faith uncertainty of the
Union’s majority status consists of unsupported generali-
ties, stale expressions of sentiment and self-serving tes-
timony that lacked the corroborative detail found in
Allentown Mack.
Further, the Respondent’s conduct when it withdrew
recognition undermines its assertion that the basis for its
behavior was a good-faith uncertainty concerning the
Union’s majority status. At the time of its withdrawal,
the Respondent asserted that its reason for withdrawing
was a steadfast belief that it had the right to do so under
Section 8(f). Given the Respondent’s denial of a 9(a)
relationship with the Union, the Respondent’s assertion
of a good-faith uncertainty is, at best, an after-the-fact
fabricated defense. In other words, if the Respondent
disputed the fact that it had a 9(a) relationship with the
Union, then the Respondent never had to question
whether the Union enjoyed majority support.
In sum, the Agreement entered into between the Re-
spondent and the Union created a 9(a) relationship. As
such, absent a showing of good-faith uncertainty regard-
ing majority support for the Union, the Respondent could
not withdraw recognition and repudiate the Agreement.
Because the evidence is insufficient to support a finding
of a good-faith uncertainty concerning the Union’s ma-
jority status, we find that the Respondent’s withdrawal of
recognition from, and its refusal to bargain with, the Un-
ion, as well as its cessation of contributions to certain
contractually established trusts and its cessation of use of
the Union’s hiring hall services, violated Section 8(a)(5)
and (1) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 638
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act, and the Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Since October 17, 1995, the Union, pursuant to Sec-
tion 9(a) of the Act, has been the exclusive bargaining
representative of the Respondent’s employees who per-
form piping and plumbing work.
3. By withdrawing recognition from the Union, refus-
ing to bargain with the Union, and unilaterally ceasing
application of the terms and conditions set out in the col-
lective bargaining agreement, including those requiring
contributions to certain contractually established trust
funds and utilization of the union hiring hall referral ser-
vices, the Respondent has violated Section 8(a)(5) and
(1) of the Act.
4. The violations are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in un-
fair labor practices in violation of Section 8(a)(5) and (1)
of the Act, we shall order it to cease and desist and to
take certain affirmative action to effectuate the policies
of the Act. Specifically, we shall order the Respondent
to recognize and, on request, to bargain with the Union
as the exclusive bargaining agent of its plumbing and
piping employees. We shall also order the Respondent,
on request by the Union, to rescind changes in employ-
ment terms made after June 30, 1997, restoring those
employment terms to levels that existed prior to that date.
As to those employment terms for which rescission is
requested and restoration occurs, the Respondent shall be
ordered (1) to make whole all unit employees for any
loss of wages and other benefits suffered, as calculated in
accordance with Ogle Protection Service, 183 NLRB
682, 683 (1970), with interest computed in the manner
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987); (2) to make whole any fringe benefit funds
in the manner prescribed in Merryweather Optical Co.,
240 NLRB 1213 (1979); (3) to reimburse employees for
any losses or expenses they may have incurred because
of its failure to make payments to those funds, in the
manner prescribed in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), with interest computed in the
manner prescribed in New Horizons for the Retarded;
and (4) to offer immediate and full employment to those
applicants who would have been referred to the Respon-
dent for employment through the Union’s hiring hall
were it not for the Respondent’s unlawful conduct, and to
make them whole for any loss of earnings and other
benefits they may have suffered by reason of the Re-
spondent’s failure to hire them, as provided in J. E.
Brown Electric, 315 NLRB 620 (1994). Backpay is to be
computed in a manner consistent with F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest thereon as set
forth in New Horizons for the Retarded. Reinstatement
and backpay issues will be resolved by a factual inquiry
at the compliance stage. J.E. Brown Electric, 315 NLRB
620 (1994).
ORDER
The Respondent, Nova Plumbing, Inc., Santa Ana,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
the Southern California Pipe Trades District Council No.
16, United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United
States and Canada, AFL–CIO as the exclusive represen-
tative of its bargaining-unit employees.
(b) Failing to bargain with the Union as the exclusive
representative of bargaining unit employees by unilater-
ally ceasing the application of the terms and conditions
set out in the collective-bargaining agreement, including
those requiring contributions to certain contractually es-
tablished trust funds and requiring utilization of the un-
ion hiring hall referral services.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and bargain collectively in good faith
with the Union as the exclusive bargaining representa-
tive, pursuant to Section 9(a) of the Act, of its unit em-
ployees. The appropriate unit is:

All employees of the Contractor performing plumb-
ing and piping work.

(b) On request of the Union, restore the terms and con-
ditions of employment which were in effect and applica-
ble to employees in the bargaining unit prior to the Re-
spondent’s termination of the collective-bargaining
agreement on June 30, 1997.
(c) Make whole the unit employees for any loss of pay
and benefits suffered as a result of the Respondent’s fail-
ure to abide by the terms of the collective-bargaining
agreement with the Union, in the manner set forth in the
remedy section of this decision.
(d) Make whole, with interest, those employees who
would have been referred for employment through the
NOVA PLUMBING, INC. 639
Union’s referral system and employed by the Respondent
but for the unlawful unilateral changes in terms and con-
ditions of employment that it made on June 30, 1997.
(e) Make whole all fringe benefit funds for any losses
they may have suffered as a result of the unilateral modi-
fication of terms and conditions of the collective-
bargaining agreement in the manner prescribed in the
remedy section of this decision.
(f) 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 the Board’s Order.
(g) Within 14 days after service by the Region post at
its Santa Ana, California location copies of the attached
notice marked Appendix.4 Copies of the notice, on forms
provided by the Regional Director for Region 21, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since June 30, 1997.
(h) 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 the Region at-
testing to the steps that the Respondent has taken to
comply.

CHAIRMAN HURTGEN, dissenting.
I conclude that the General Counsel has not estab-
lished a 9(a) relationship. In the construction industry,
absent evidence to the contrary, the Board presumes that
the parties intend their relationship to be governed by
Section 8(f), rather than Section 9(a). The distinction
between an 8(f) and a 9(a) relationship is quite signifi-

4 If this Order is enforced by a judgment of the United States court of
appeals, the words in the notice reading “Posted by Order of the 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.”
cant. Under an 8(f) contract, a union enjoys no presump-
tion of majority status, and either party may repudiate the
relationship upon the expiration of the contract. See
Deklewa & Sons, 282 NLRB 1375 (1987). However,
under a 9(a) contract, an employer has a duty to bargain
after the contract expires. Id.
The burden of proving a 9(a) relationship is on the
party asserting such a relationship. This burden may be
met in two ways: The party either may win a Board-
certified election or it may obtain the employer’s volun-
tary recognition of the union as the employees’ exclusive
majority-supported bargaining agent. With regard to the
latter approach, a written contract containing clear rec-
ognition language can establish 9(a) bargaining status.
In Staunton Fuel & Material, 335 NLRB 717 (2001),
the Board recently discussed the minimum requirements
that a written recognition agreement or contract clause
must meet in order for a union to attain 9(a) status solely
on the basis of such an agreement. In that case, the
Board adopted the requirements stated 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), and NLRB v. Oklahoma Installation Co., 219 F.3d
1160 (10th Cir. 2000). Thus, the Board held that a rec-
ognition agreement or contract provision will be inde-
pendently sufficient to establish a union’s 9(a) represen-
tation status where the language “unequivocally” indi-
cates that: (1) the union requested recognition as the
majority or 9(a) representative of the unit employees; (2)
the employer recognized the union as the majority or 9(a)
bargaining representative; and (3) the employer’s recog-
nition was based on the union’s having shown, or having
offered to show, evidence of its majority support. Staun-
ton Fuel & Material, supra at 721.
The contract at issue in Staunton Fuel & Material con-
tained a recognition provision stating that the respondent
employer “recognize[s] [the union] as the Majority Rep-
resentative.” However, the provision did not state that
the respondent’s recognition was based on a contempo-
raneous showing, or offer by the union to show, that the
union had majority support. Applying the test set forth
above, the Board concluded that the contract language
was insufficient to establish a 9(a) relationship. The
Board also provided additional guidance as to what lan-
guage would be considered sufficient to establish 9(a)
status. Regarding statements in contracts claiming ma-
jority support, the Board examined a contractual state-
ment providing that the union “represents” a majority of
unit employees. The Board reasoned that such language
would be accurate under either an 8(f) or 9(a) agreement
and concluded that such language does not conclusively
establish a 9(a) relationship. Id. Further, the Board spe-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 640
cifically overruled Oklahoma Installation Co., 325
NLRB 741 (1988), and other precedent that find Section
9(a) status based on an agreement indicating that the un-
ion “represents a majority.”
In the case at hand, the MLA states that “the Union
represents an uncoerced majority of the employees of the
[Respondent].” According to Staunton Fuel & Material,
however, such language is insufficient to overcome the
presumption that the parties’ bargaining relationship op-
erated under Section 8(f). Further, the language in the
MLA, i.e., “evidence [which demonstrates] that the Un-
ion represents an uncoerced majority . . . has been inde-
pendently verified,” is not sufficient to establish that the
Union has shown, or offered to show, majority status.
The critical question is “whether the Agreement un-
equivocally and unambiguously illustrates that the parties
intended to be governed by Section 9(a) rather than Sec-
tion 8(f).” Oklahoma Installation, 219 F.3d at 1164.
In Oklahoma Installation, the United States Court of
Appeals for the Tenth Circuit examined a representation
agreement providing that “the Union has submitted, and
the employer is satisfied, that the Union represents a ma-
jority of its employees.” Id. at 1165. The court rejected
the argument that the word “submitted” meant that the
Union in fact submitted proof of majority support. The
court stated that another logical reading of that word was
that the Union asserted that it represented a majority, and
the court therefore concluded that the term “submitted”
only heightened the ambiguity of the recognition agree-
ment. Id. Likewise, in the case at hand, the term “inde-
pendently verified” does not provide unequivocal evi-
dence of a 9(a) relationship. A reasonable interpretation
of that language is that an independent source verified
the union representation of the employees, but not the
Union’s claim that it had the support of, or authorization
by, a majority of employees.
Although, as noted, I do not insist upon “magic
words,” I do insist, as does Staunton Fuel & Material,
upon a lack of ambiguity.1 In my view, there is an ambi-
guity here. The language speaks of “evidence that the
Union represents an uncoerced majority of employees.”
However, as discussed above, that is not the same as evi-
dence that the Union made “a clear showing of majority
support.”2 The language in the instant case goes on to

1 See Staunton Fuel & Material.
2 This was the language of Triple C Maintenance, where Sec. 9(a)
status was found. In that case, the Tenth Circuit approved the reason-
ing of the United States Court of Appeals for the Third Circuit in Sheet
Metal Workers Local 19 v. Herre Bros., 201 F.3d 231, 239 (3d Cir.
1999). The Third Circuit said that the agreement there “recites that the
Union submitted proof and that the employer is satisfied that the union
represents a majority based on that proof.” There is no comparable
language in the instant case.
state that this “evidence” was “presented to the
[c]ontractor and was independently verified.” However,
since the “evidence” is not a majority showing, it is of no
moment that it was presented to the contractor or inde-
pendently verified. It may be less than clear how “Union
representation” can be “presented” and “verified.” But,
this only highlights the ambiguity of the language.
My colleagues state that: “It does not matter whether
the Union has attained majority support if the only rela-
tionship the parties were seeking was an 8(f) relation-
ship.” I agree. The contract here does not speak of ma-
jority support, and thus, is consistent with an 8(f) rela-
tionship.
In sum, if a union can establish actual majority sup-
port, or if it can point to language which provides that it
had majority support, it can be the 9(a) representative.
The critical issue is whether a majority of the employees
chose the union. The issue is not whom the union repre-
sents. If the employees did not choose the union, we
should not risk foisting a 9(a) union on the employees.
Based on all of the above, I find that the Union and the
Respondent did not have a 9(a) relationship. Thus, it is
of no significance whether the Respondent had a good-
faith uncertainty as to the Union’s majority status. Be-
cause I find that the relationship was governed by Sec-
tion 8(f), the Respondent did not violate Section 8(a)(5)
when it withdrew recognition, refused to bargain, and
terminated trust fund contributions after the contract ex-
pired. I would dismiss the complaint.
APPENDIX
NOTICE TO EMPLOYEES
Posted by the Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT withhold recognition from and fail
and refuse to bargain with the Southern California Pipe
Trades District Council No. 16, United Association of
Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL–
NOVA PLUMBING, INC. 641
CIO as the exclusive representative of our employees in
the following appropriate bargaining unit:

All employees of the Contractor performing plumb-
ing and piping work.

WE WILL NOT fail to bargain with the Union as the
exclusive representative of bargaining unit employees by
unilaterally ceasing the application of the terms and con-
ditions set out in the collective-bargaining agreement,
including those requiring contributions to certain con-
tractually established trust funds and requiring utilization
of the union hiring hall referral services.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain collec-
tively and in good faith with the Union and put in writing
and sign an agreement reached on terms and conditions
of employment for employees in the following unit:

All employees of the Contractor performing plumb-
ing and piping work.

WE WILL, on request of the Union, rescind any
changes from terms and conditions of employment that
existed before June 30, 1997, retroactively restoring pre-
existing terms and conditions of employment, including
wage rates and benefit plans, and WE WILL make whole
the bargaining unit employees by remitting all wages and
benefits that would have been paid absent such unilateral
changes from on or about June 30, 1997.
WE WILL offer immediate and full employment to
those applicants who would have been referred for em-
ployment by the Union were it not for our unlawful con-
duct, and make them whole for any loss of earnings and
other benefits suffered by reason of our failure to hire
them.
NOVA PLUMBING, INC.

John Kloosterman, Esq., for the General Counsel.
Steven D. Atkinson and Thomas A. Lenz, Esqs. (Atkinson, An-
delson, Loya, Ruud & Romo), of Cerritos, California, for
the Respondent.
Jeffrey L. Cutter, Esq. (Wohlner Kaplon Phillips Young &
Barsh), of Encino, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on December 14–17, 1998, in Los Ange-
les, California, pursuant to a complaint and notice of hearing
issued by the Regional Director of Region 21 of the National
Labor Relations Board on March 31, 1998, based on charges
filed on September 18, 1997, by the Southern California Pipe
Trades District Council No. 16, United Association of Jour-
neymen and Apprentices of the Plumbing and Pipefitting Indus-
try of the United States and Canada, AFL–CIO (the Charging
Party or the Union) against Nova Plumbing, Inc. (Nova or the
Respondent).
The complaint alleges that the Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act (the Act),
on and after June 30, 1997, by (a) withdrawing recognition of
the Union as the exclusive collective-bargaining representative
of a unit of the Respondent’s employees, (b) ceasing to contrib-
ute to contractually established health, vacation and holiday
trusts and, (c) failing and refusing to meet and bargain with the
Union on behalf of unit employees.
The Respondent admits that it undertook the actions alleged.
It avers, however, that at least as of the June 30, 1997 expira-
tion of the contract, it was not obligated to: (1) continue to rec-
ognize the Union as the representative of its unit employees, (2)
bargain with the Union respecting those employees or (3) con-
tinue to make contractually provided for fringe benefit contri-
butions and, therefore, its conduct did not violate the Act, as
alleged.
FINDINGS OF FACT
On the entire record, including helpful briefs from the Gen-
eral Counsel and the Respondent, I make the following findings
of fact.
I. JURISDICTION
The Respondent, a corporation with an office and place of
business in Santa Ana, California, has at all times material been
a plumbing subcontractor in the construction industry in the
State of California. During its business operations, the Re-
spondent has annually enjoyed revenues in excess of $500,000,
and during the same periods has purchased and received goods
at its California locations valued in excess of $50,000 from
other enterprises located within the State of California, each of
which other enterprises has received these goods directly from
points outside the State of California.
Based on the above, there is no dispute and I find the Re-
spondent is and has been at all times material an employer in
the construction industry engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent was formed and commenced business op-
erations in 1994. At all times its president has been Rodney
Robbins. Rodney Robbins’ father, in the years previous to the
Respondent’s creation, operated a plumbing contractor com-
pany, Calta. During those prior years Rodney Robbins served
as the vice president of Calta. Calta recognized the Union as
representative of its employees and had a contract with the
Union during its life but ceased operations at about the time
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 642
Nova commenced business. When Nova started it hired many
employees from the Calta operation.
B. The Events of 1995
The Union sought recognition from and bargaining with
Nova in late 1994 and by early 1995 the parties were in sub-
stantial disagreement. The Union contractual fringe benefit
trusts were threatening litigation against Nova predicated on a
relationship between Calta and Nova and Nova had filed a RM
petition with the Board. Negotiations were conducted between
the parties resulting in a global resolution which included a
collective-bargaining agreement being signed, the Union’s
threat to file trust litigation being withdrawn, and the NLRB’s
representation petition being withdrawn. Substantial dispute
existed among witnesses respecting oral agreements and asser-
tions made during the parties’ negotiations regarding Nova’s
right to abandon its relationship with the Union if it did not
organize Nova’s business competitors and whether or not the
Union in obtaining recognition from and a contract with Nova
was asserting it represented a majority of unit employees.
Nova’s president, Robbins, signed various contractual docu-
ments on October 17, 1995. The documents signed by Nova
included a master agreement—there is some dispute respecting
the specifics—and a residential addendum agreement. The
residential addendum agreement signed by Robbins asserted the
term of the agreement was through June 30, 1997, and shall
only be extended by the written agreement of the parties.
During this process, Robbins met with at least some of the
unit employees and told them of the Respondent’s arrange-
ments with the Union. Employees expressed dissatisfaction
with both Nova and the Union in entering into the contract.
The Respondent offered essentially unchallenged evidence that
employees made it clear at that time and on an ongoing basis
thereafter that they did not desire to be represented by the Un-
ion.
C. The Events of 1997
The contract was put in effect by agreement of the parties on
a job-by-job basis and once in effect its terms were carried out
for the remainder of its term. During the life of the contract
employees voiced continuing dissatisfaction to the Respon-
dent’s agents both with the terms of the agreement and with
Nova’s recognizing the Union as the employees’ representative.
Nova was in turn dissatisfied with the Union’s apparent failure
to organize Nova’s competition. Nova sent the Union a letter
dated May 9, 1997, entitled, “Termination of Agreement”
which informed the Union it was terminating the agreement
effective June 30, 1997, and asserted that it had no obligation to
bargain for a successor agreement. On May 12, 1997, the Un-
ion sent Nova a notice requesting bargaining for a new agree-
ment. On May 14, 1997, the contractual trust funds sent Nova
a letter discussing Nova’s potential liability in withdrawing
from the trust plans.
In this context a meeting was held on June 12, 1997. Al-
though the meetings’ specifics are in dispute, it is clear that an
oral agreement to extend the contract for 60 days was reached.
Thereafter on June 16, 1997, an additional meeting was held
between Robbins and union officials but strong differences
continued over various matters and the Union indicated there
could be no agreement on the terms of a 60-day contract exten-
sion. Through correspondence thereafter Nova made it clear to
the Union that after the 60-day extension had passed, it would
not extend the agreement further or bargain further. Negotia-
tions have not resumed, the terms and conditions of employ-
ment under the contract including trust fund payments have not
continued and the Respondent continues to refuse to recognize
the Union as the representative of its employees.
D. Analysis and Conclusions
1. The arguments of the parties
The General Counsel argues that the parties entered into a re-
lationship controlled by Section 9(a) of the Act predicated on
recognition of the Union’s majority support among Nova’s unit
employees by Nova’s act of signing the 1995 collective-
bargaining agreement and that the Respondent, as a matter of
law, may not at this late date now assert either that the Union
did not have such majority employee support or that the parties
did not intend to enter into such a relationship at that time. The
General Counsel in making this assertion relies on the recent
Board case of Oklahoma Installation Co., 325 NLRB 741
(1998), which holds that an assertion of majority status con-
tained in the language of a collective-bargaining agreement will
support a finding that the parties by virtue of the contract en-
tered into a 9(a) relationship. The Respondent argues that the
parties never clearly and explicitly intended to enter into a 9(a)
relationship and that Nova was unaware that it was entering
into such a relationship. Further, the Respondent argues that at
no time, historically or currently, has the Union ever had the
support of a majority of employees in the unit and that this was
manifestly clear to all parties at all times and particularly
known to Nova’s president, Robbins, the individual who signed
the contract on Nova’s behalf. The General Counsel answers
the Respondent’s challenge to the majority representation status
of the Union at the time the contract was entered into by argu-
ing that Section 10(b) of the Act precludes inquiry into the
extent of support for the Union among employees more than 6
months before the filing of charges citing Expo Group, 327
NLRB 413 (1999); and Casale Industries, 311 NLRB 951
(1993).
Given the 9(a) relationship of the Respondent and the Union
created in 1995, argues the General Counsel, and specifically
unlike the situation involving a nonmajority relationship as
allowed under Section 8(f) of the Act, there is a presumption of
continuing majority support for the Union and the Respondent
could not properly withdraw recognition from the Union. Thus,
argues the government, the Respondent could not unilaterally
end its relationship with the Union and discontinue bargaining
for a new agreement at the expiration of the agreement in 1997.
The Respondent argues first that the Union had, in effect,
agreed to terminate the relationship were it to fail to organize
Nova’s competitors and, when it failed to do so, Nova was
privileged to rely on the promise. Thus, under this theory of the
Respondent the Union is to be held to its agreement and con-
ceptually may be regarded as having waived its right to con-
tinue representing employees or, alternatively, to have con-
structively withdrawn as the unit employees representative
NOVA PLUMBING, INC. 643
when it failed as promised to organize Nova’s competition.
Even were this not so, argues the Respondent, since the Union
had never had, and at the time of the end of the contract still did
not have, the support of a majority of employees in the unit
and, since the Respondent well knew that fact, the Respondent
was privileged to withdraw recognition and bargaining on that
basis.
2. Did Nova have a good-faith doubt that the Union represented
a majority of its unit employees at the time
of the expiration of the contract?
For purposes of this threshold analysis I shall assume, with-
out deciding, that the relationship between the parties under the
1995–1997 contract was established under Section 9(a) of the
Act and was based on union majority support among unit em-
ployees at the time the contract was signed. This being so,
there is no dispute under settled Board law that the employer
may not unilaterally withdraw recognition and refuse to meet
and bargain with the Union concerning a new contract unless
and until it has a reasonable good-faith doubt that the Union
enjoys majority support among unit employees. If an em-
ployer’s doubts are insufficient, its withdrawal of recognition
and refusal to bargain violates Section 8(a)(5) and (1) of the
Act. If the employers’ doubts are held reasonable, then such
withdrawal and refusal is permissible and does not violate the
Act.
The Board through the years has evolved a substantial body
of case law respecting just what constitutes reasonable good-
faith doubt in this setting. That body of law however was
thrown into some disarray by the Supreme Court in Allentown
Mack Sales & Service v. NLRB, 522 U.S. 359 (1998). The
Court in Allentown accepted the Board’s requirements respect-
ing an employer’s good-faith doubt but rejected the manner in
which the Board made its factual determinations in regards
thereto. Thus, the Court held (id. at 379, 380):

Of course, the Board is entitled to be skeptical about the
employer’s claimed reliance on secondhand reports when
the reporter has little basis for knowledge, or has some in-
centive to mislead. But that is a matter of logic and sound
inference from all the circumstances, not an arbitrary rule
of disregard to be extracted from prior Board decisions.
The same is true of the Board precedents holding that
“an employee’s statements of dissatisfaction with the qual-
ity of union representation may not be treated as opposi-
tion to union representation,” and that an “employer may
not rely on an employee’s anti-union sentiments, ex-
pressed during a job interview in which the employer has
indicated that there will be no union.” 83 F.3d, at 1488,
citing Destileria Serralles, Inc., 289 N.L.R.B. 51 (1988),
enf’d, 882 F.2d 19 (CA1 1989), and Middleboro Fire Ap-
paratus, Inc., 234 N.L.R.B. 888, 894, enf’d, 590 F.2d 4
(CA1 1978). It is of course true that such statements are
not clear evidence of an employee’s opinion about the un-
ion—and, if the Board’s substantive standard required
clear proof of employee disaffection, it might be proper to
ignore such statements altogether. But that is not the stan-
dard, and depending on the circumstances, the statements
can unquestionably be probative to some degree of the
employer’s good-faith reasonable doubt.

. . . .

We conclude that the Board’s “reasonable doubt” test
for employer polls is facially rational and consistent with
the Act. But the Board’s factual finding that Allentown
Mack Sales lacked such a doubt is not supported by sub-
stantial evidence on the record as a whole.

Given the explicit teachings of the Court, I shall seek to ap-
ply logic and draw sound inferences from all the circumstances
in determining whether or not on the facts of this case, Nova’s
professed doubts concerning the Union’s majority support
among unit employees at the time bargaining was discontinued
and recognition withdrawn were reasonable and in good faith
and therefore sufficient to justify its actions.
The General Counsel argues strenuously that the testimony
regarding union support in the unit and the Respondent’s be-
liefs respecting that support in 1994 and 1995 before the con-
tract was signed are immaterial. He makes that argument on
two grounds. First he argues that with the passage of time and
turnover, these ancient times are simply not logically related to
the critical postcontract period. Second, the General Counsel
argues that the contractual relationship—as is assumed to be
true for purposes of this analysis was grounded in Section 9(a)
of the Act and that fact in effect raises an irrebuttable presump-
tion of majority support for any period of more than 6 months
before the filing of the charges herein.
I accept the General Counsel’s argument that the relevant
time to test the Respondent’s good-faith doubt is the period
when the contract had expired, bargaining was broken off and
recognition withdrawn. I also agree that earlier times must be
discounted in considering the proffered basis for the Respon-
dent’s good-faith doubts. I find however that all evidence, in-
cluding evidence from earlier times may be considered, if as no
more than background, in evaluating the Respondent’s asserted
doubts. While the General Counsel is correct that Board law is
that once a 9(a) relationship has been established, the Board
will not look beyond the 6 months statute of limitations period
set forth in Section 10(b) of the Act to find an improper minor-
ity recognition, this doctrine does not render improper an
evaluation of the evidence during that period just as other
background evidence occurring before a 10(b) unfair labor
practice 6-month limitation is considered in other unfair labor
practice cases.
The Respondent put into evidence the testimony of President
Rodney Robbins, Superintendents Richard Eckroth and Fred
Saldana, Formen Donald Banks, Tom Leonardo, James Edward
Hall, Paul Thomas, and Office Manager Marjorie Cardone
Robbins. The foremen testified that they had opposed union
representation and the 1995 contract in meetings with Robbins
and the Union at the time the contract was entered into. They
also testified with differing degrees of specificity that they had
talked to other employees from time to time and, consistently
through the entire history of Nova, there were no employees
who expressed support for the Union nor a desire to be repre-
sented by it. The superintendents had broader contacts with
employees and new hires and testified that the new employees
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 644
generally had a history of employment in unorganized residen-
tial plumbing and were unfamiliar with and resistant to union
representation and the payment of dues and initiation fees.
Office Manager Robbins confirmed that the newer employees
were reluctant to pay dues and resistant to joining the Union.
All of these experiences in greater or lessor degree were com-
municated to President Robbins who testified they confirmed
his own observations and belief throughout the period that the
Union simply had no support among unit employee at anytime
including the time following the expiration of the contract and
the Respondent’s withdrawal of recognition.
The General Counsel challenges the quality and efficacy of
this testimony on several grounds. First he points out that
much of what was described by the former Calta employees
was simply the discontent of those Calta employees to one
another through the entire period rather than the expressions of
the significant number of employees who were later hired.
Second the General Counsel argues that much of what was
reported by the superintendents and the foremen was dissatis-
faction with contract terms and the costs of dues and initiation
fees not direct evidence that employees did not seek to be rep-
resented by the Union. Finally the General Counsel notes that,
with employee turnover and the increased complement of em-
ployees in the period after the contract expired, the number of
employees expressing dissatisfaction and purportedly relied on
by the Respondent represented a much smaller portion of em-
ployees than during the earlier period when the unit was
smaller.
The General Counsel also argues that the real reason the Re-
spondent withdrew recognition was its purported agreement
with the Union that it did not have to bargain with the Union or
sign a new contract with it unless and until the Union organized
Nova’s competition. Thus, argues the General Counsel, the
Respondent’s assertion it did not have to bargain because of a
good-faith doubt regarding the Union’s support among employ-
ees is an after the fact defense which should be either rejected
out of hand or at the very least viewed skeptically.
The Respondent does not dispute that it believed itself justi-
fied in relying on its agreement with the Union that it need not
bargain with the Union or sign a contract unless and until the
Union organized Nova’s competitors. Nova also argues how-
ever that at all times during the relationship with the Union
commencing in 1994 to the time it withdrew recognition, it has
no doubt that the Union was not supported by employees.
Rather, argues the Respondent, it at all times considered the
relationship between the Union and Nova—to the extent the
statutory distinctions and their ramifications were understood—
to be predicated on a nonmajority or 8(f) basis and that, in such
circumstances, it was privileged to initially recognize the Union
even though it did not represent a majority of unit employees
and also to discontinue bargaining and withdraw recognition
after the contract had expired. Thus, the Respondent argues the
lack of majority was an ongoing belief that continued without
interruption throughout the events under challenge. That belief
informed the Respondent’s actions, insofar as it understood the
consequences of that fact bore on its bargaining relationship
with the Union, and was and is not a last minute defense.
I have assumed for purposes of analysis that the General
Counsel’s cited cases are sufficient to have created a 9(a) rela-
tionship between the Union and the Respondent at the time the
contract was entered into in 1995. That assumed fact creates a
presumption that a majority of unit employees supported the
Union at the time of the contract’s signing and that a majority
of employees continued to support the Union following the
contract’s expiration. The General Counsel seeks to rely on
that fact and the argued insufficiency of the evidence offered by
the Respondent in support of its asserted good-faith and reason-
able belief that the Union did not represent a majority of em-
ployees to defeat the Respondent’s defense to the withdrawal of
recognition.
There are numerous earlier Board decisions in this area that
might well be cited to metaphorically take the traveler tree by
tree to the General Counsel’s conclusion. The Supreme Court
however in Allentown, as discussed supra, has instructed the
Board and its judges to take better account of the forest and in a
more global manner apply logic and sound inference from all
the circumstances in evaluating good-faith doubt issues. With
that important and liberating instruction in mind, I find that the
Respondent did in fact have at all material times a good-faith
doubt that the Union ever represented a majority of its unit
employees and therefore was privileged to withdrawal recogni-
tion and cease bargaining with the Union upon the contract’s
expiration.
I reach this conclusion for several reasons. In setting forth
the reasoning that follows, I emphasize that this is an unusual
case where the support of the Union among unit employees
derives essentially entirely from presumptions, and the Re-
spondent’s attempts to discount those presumptions are met by
the limiting constraints of Section 10(b) of the Act. In other
words, this is a case where the artificial constructs advanced by
the General Counsel must be recognized for what they are.
Initially, I credit the testimony offered by the Respondent re-
specting employee support for the Union and the reporting of
supervisory information to President Robbins and I credit Rob-
bins’ testimony that he in fact believed at all material times that
the Union was without support let alone majority support in the
unit. Secondly, I find that Robbins’ belief was reasonable as
well as held in good faith because the older core of employees
had early on and continually thereafter expressed opposition to
the Union and a significant number of the new employees hired
thereafter expressed disinclination to be represented by the
Union. Finally I do not reject the Respondent’s defense as a
last minute defense raised to cloak a scheme to defeat the Un-
ion. Rather, I find that the Respondent was dealing with the
Union knowing it did not represent its employees but its lack of
concern for that fact was grounded in a belief that under Sec-
tion 8(f) of the Act employee support for the Union was not a
relevant factor and, further, that the employer was free to with-
draw recognition and cease bargaining upon the 1995 contract’s
expiration.
I therefore find that the Respondent had a good-faith and
reasonable belief at the time that it withdrew recognition from
the Union that it did not have the support of a majority of unit
employees. I find further that the Respondent did not violate
the Act in so withdrawing recognition and refusing to meet and
NOVA PLUMBING, INC. 645
bargain with the Union. Similarly, it was privileged to discon-
tinue contractually established payments.
3. Summary and conclusions
Having found that the Respondent through its president,
Robbins, had a reasonable and good-faith doubt that the Union
had the support of a majority of unit employees after the expira-
tion of the contract, I find that the Respondent was privileged
for that reason to cease paying into the trust funds provided by
the expired contract, to cease bargaining with the Union and to
withdraw and withhold recognition of the Union as the repre-
sentative of its unit employees for purposes of collective bar-
gaining. I find, therefore, that the Respondent has not violated
the Act as alleged in the complaint. Accordingly, I find the
allegations of the complaint are without merit and shall be dis-
missed.
CONCLUSIONS OF LAW
On the basis of the above findings of fact and on the entire
record herein, I make the following 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 did not violate the Act as alleged in the
complaint.
[Recommended Order for dismissal is omitted from publica-
tion.]