Ray Black & Sons Construction

National Labor Relations Board - Board Decisions

Aug 27, 2001

335 N.L.R.B. 457 (N.L.R.B. 2001)

RAY BLACK & SONS CONSTRUCTION 457
Ray Black & Sons Construction, Inc. and Local 702,
International Brotherhood of Electrical Work-
ers, AFL–CIO. Cases 14–CA–25168, 14–CA–
25409, and 14–CA–25618
August 27, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN AND WALSH
On August 1, 2000, Administrative Law Judge Wil-
liam G. Kocol issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering 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 briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
The judge found that Respondent violated Section
8(a)(5) and (1) of the Act by: (1) withdrawing recogni-
tion from the Union because Respondent failed to show,
in its defense, that the bargaining unit had declined to a
stable single employee unit; and (2) refusing to provide
the Union with certain requested information. For the
reasons set forth below, we disagree.
The facts are undisputed. Respondent is a corporation
engaged in the construction industry as a general contrac-
tor and subcontractor. The Union began an organizing
drive in 1996 to represent Respondent’s electrical work-
ers. On June 24, 1996, the Regional Director issued a
Decision and Direction of Election for the following unit:

All employees who are primarily engaged in the per-
formance of electrical work, excluding office, clerical
and professional employees, guards and supervisors as
defined in the Act and all other employees.

The Regional Director found that there were nine em-
ployees who spent at least 85 percent of their time during
the 12-month period prior to May 3, 1996, performing
electrical work, and nine other employees who spent less
than 8 percent of their time performing electrical work
during that period. The Regional Director concluded that
the unit should consist only of the former group.
Only the Respondent requested that the Board review
the Regional Director’s Decision and Direction of Elec-
tion. The Respondent also asserted that the Regional
Director should have delayed the scheduling of the elec-
tion because Respondent was nearing completion of a
substantial job after which the size of the unit would con-
tract. The Board denied the Respondent’s request for
review.
The Union was certified on April 17, 1997, and collec-
tive bargaining began in or about July 1997. During bar-
gaining, the Union sought to modify the certified unit
description to include all employees engaged in electrical
work rather than just employees “primarily engaged” in
the performance of electrical work. The Respondent did
not agree to the modification, insisting on maintaining
the unit description set forth in the Union’s certification.
On June 14, 1999, Respondent withdrew recognition
from the Union, asserting, inter alia, that the bargaining
unit consisted of a single employee. Respondent asserted
that the only employee “primarily engaged” in electrical
work was Mark Collier. The record shows that Collier
spent 75.9 percent of his time performing electrical work
during the period January 1–June 15, 1999, and 84 per-
cent of his time performing electrical work during 1998.
The record also shows that David Hester and Dean Mar-
low spent 37.6 percent and 28.7 percent of their time,
respectively, performing electrical work during the pe-
riod January 1–June 15, 1999, and 29.5 percent and 19.6
percent of their time, respectively, performing electrical
work during 1998.
In finding the withdrawal of recognition unlawful, the
judge first analyzed the intent of the phrase “primarily
engaged in the performance of electrical work” in the
unit description. He found “primarily” to be clear and
unambiguous. Citing Northwest Community Hospital,
331 NLRB 307 (2000) (stipulated unit), he found that
because the unit description is clear and unambiguous,
the parties should be held to the unit as described. He
therefore found that the mere fact that Hester and Mar-
low performed electrical work for substantial percent-
ages of time on a yearly basis was insufficient for them
to be included in the unit of employees who are primarily
engaged in performing electrical work.
The judge further determined, however, that the “unit
description must be understood in light of industry prac-
tice.” Considering the fluctuating nature of employment
in the construction industry and the fact that construction
industry employees may work for short periods on dif-
ferent projects, the judge reasoned that the “unit descrip-
tion in this case must include employees who were ‘pri-
marily’ engaged in electrical work for substantial peri-
ods of time.” (Emphasis supplied.) The judge was not
persuaded by the Respondent’s argument that the judge
was bound by the Regional Director’s use of an annual
percentage computation to define the scope of the term
“primarily engaged.” Instead, the judge found that Hes-
ter and Marlow were primarily engaged in the perform-
ance of electrical work for substantial periods of time in
1998 and 1999, and were therefore properly included in
335 NLRB No. 38
DECISIONS OF THE NATIONAL LABOR BOARD 458
the unit when the Respondent withdrew recognition from
the Union on June 14, 1999.
Having thus concluded that the Respondent had failed
to show that the size of the unit had declined to a stable
single employee at the time of the withdrawal of recogni-
tion, the judge found that Respondent violated Section
8(a)(5) and (1) of the Act by withdrawing recognition
and refusing to provide requested information.
Contrary to the judge, we find that the unit at issue was
a stable single-employee unit when the Respondent
withdrew recognition from the Union. We therefore find
that Respondent’s withdrawal of recognition was lawful,
and Respondent was thus under no obligation to provide
the Union with the requested information.
Unlike the judge, we find that the unit description is
facially ambiguous. It includes: “All employees who are
primarily engaged in the performance of electrical
work,” but it does not state a period of time during which
“primarily engaged” is to be measured. In these circum-
stances, a resort to extrinsic evidence is warranted to
determine the intent of the unit description.1 As dis-
cussed, the Regional Director determined which employ-
ees were “primarily engaged” in the performance of elec-
trical work, and thus in the unit, by computing the per-
centage of time they were engaged in the performance of
electrical work during the 12-month period prior to the
Union’s filing its representation petition. The Union did
not request review of the Regional Director’s determina-
tion that the unit consisted of employees “primarily en-
gaged” in electrical work, or of the Regional Director’s
use of an annual percentage computation to decide which
employees were included in the unit. Rather, after the
election, the Union expressly but unsuccessfully sought
the Respondent’s agreement to expand the scope of the
unit to include all employees engaged in electrical work,
not just those “primarily engaged.” Thus, the relevant
extrinsic evidence clearly establishes that the parties un-
derstood that the use of the term “primarily engaged” in
the unit description was based on the Regional Director’s
computing the percentage of time the employees were
engaged in the performance of electrical work during the
12-month period prior to the Union’s filing its represen-
tation petition.
We therefore find that the judge’s consideration of
construction industry practice, to engraft a “for substan-
tial periods of time” qualification on the “primarily en-
gaged” language in the unit description, was unwar-
ranted. Rather, to determine whether the bargaining unit
is a stable single employee unit, we conclude that the
unit, and its “primarily engaged” component, should be
reviewed using the annual measurement employed by the
Regional Director and understood by the parties. As
noted above, in 1998 and 1999, up to the time of the Re-
spondent’s June 14, 1999 withdrawal of recognition from
the Union, only Mark Collier was “primarily engaged in
the performance of electrical work.” Thus, Respondent
has demonstrated that the unit was a stable single-
employee unit at the time of the allegedly unlawful with-
drawal of recognition. In these circumstances, Respon-
dent was privileged to withdraw recognition from the
Union and to decline to forward the requested informa-
tion to the Union. As set forth in McDaniel Electric, 313
NLRB 126, 127 (1993), “The Board has long recognized
the principle that collective bargaining presupposes that
there is more than one eligible person who desires to
bargain.” Accordingly, we reverse the judge’s findings
and we dismiss the complaint.

1 See, e.g. Northwest Community Hospital, 331 NLRB 307, 308
(2000) (“Where the stipulation is unclear, resort to extrinsic evidence is
appropriate to determine the parties’ intent regarding the disputed clas-
sification.”)
ORDER
The complaint is dismissed.

Kathy J. Talbott-Schehl, Esq., for the General Counsel.
Andrew J. Martone, Esq. (Bobroff, Hesse, Lindmark, & Mar-
tone, P.C.), of St. Louis, Missouri, for the Respondent.
James I. Singer, Esq. (Schuchat, Cook, & Werner), of St. Louis,
Missouri, for the Union.
DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. This
case was tried in St. Louis, Missouri, on April 26, 2000. The
original charges were filed June 22, 1998, January 6, and June
18, 1999. Amended charges in the last two cases were filed
March 2, and November 30, 1999. An order consolidating
cases, order revoking settlement, consolidated complaint and
notice of hearing (the complaint) was issued November 30,
1999. The complaint alleges that Ray Black & Sons Construc-
tion, Inc. (Respondent) violated Section 8(a)(5) and (1) of the
Act by withdrawing recognition from Local 702, International
Brotherhood of Electrical Workers, AFL–CIO (the Union) and
by refusing to provide the Union with certain requested infor-
mation. The complaint also set aside a settlement agreement
that had been previously agreed upon by the parties. Respon-
dent filed a timely answer that, as amended at hearing, admitted
the filing and service of the charges, jurisdiction, the Union’s
labor organization status, the agency status of Dan and Darrel
Black, the appropriateness of the unit, and the Union’s
certification as the representative of the employees in the unit,
and that it withdrew recognition from the Union. Respondent
denied the Union’s 9(a) status and the substantive allegations of
the complaint. Respondent also plead a number of affirmative
defenses, including that it owed no obligation to continue to
recognize the Union because there was only one person in the
unit.
RAY BLACK & SONS CONSTRUCTION 459
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent and the Union, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is engaged in the construction
industry as a general contractor and a subcontractor at its facil-
ity in Mt. Vernon, Illinois, where it annually purchases and
receives goods valued in excess of $50,000 directly from points
located outside the State of Illinois. Respondent admits and I
find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
As indicated, Respondent is engaged in the construction
business. The Union began an organizing drive in 1996 to
represent Respondent’s electrical workers. After filing a repre-
sentation petition with the Board a hearing was held and the
Regional Director issued a Decision and Direction of Election.
The Regional Director directed an election in the following
unit:

All employees who are primarily engaged in the performance
of electrical work, excluding office, clerical and professional
employees, guards and supervisors as defined in the Act and
all other employees.

In his decision the Regional Director noted that there were nine
employees who spent at least 85 percent of their time perform-
ing electrical work. He noted that were nine other employees
who spent between 7 and 8 percent, or less, performing electri-
cal work. He concluded that the unit should consist of the for-
mer group of employees; he excluded the latter group from the
unit.
An election was held July 19, 1996. The final tally of bal-
lots issued April 9, 1997, showing that the Union won the elec-
tion by a vote of 6 to 2. The Union was certified on April 17,
1997. Bargaining between the parties began in July and con-
tinued through March 1998. During bargaining, the Union
sought to modify the unit description to cover all electrical
work rather than employees primarily engaged in electrical
work. The Union made this proposal because it recognized that
under the certified unit description Respondent was able to use

1 On June 28, 2000, the General Counsel filed a motion to strike a
portion of Respondent’s brief. On July 6, 2000, Respondent filed an
opposition to the General Counsel’s motion. Those documents are
received into evidence as ALJ’s Exhs. 1 and 2, respectively. In his
motion the General Counsel argues that Respondent incorrectly stated
that the parties had stipulated that two named individuals were the only
employees primarily engaged in electrical work. In this regard, the
General Counsel is correct; the parties did not so stipulate. However,
as clarified in Respondent’s opposition, the assertion was made more in
the nature of argument rather than as a binding admission. Accord-
ingly, I will deny the motion to strike.
nonunit employees to perform electrical work. Respondent
rejected this proposal and insisted upon the unit description as
set forth in the certification.
B. The First Withdrawal of Recognition
As indicated above, the parties engaged in collective bar-
gaining beginning in about July 1997. By letter dated May 21,
1998, Respondent stated:

Please be advised that Ray Black & Sons Construction, Inc. is
hereby withdrawing recognition from IBEW Local 702 as the
representative of any of its employees.

By letter dated November 4, the Union requested the follow-
ing information:

I was told by a representative of Asgrow Seed Company
that your Company was serving as a general contractor for
the construction of a new grain processing plant in Cen-
tralia. Since hearing this from Asgrow, I have attempted to
verify who would be doing the electrical construction and
when this work would start have now learned that within the
last week or so, electrical work has started on the new grain
plant, that your Company is in fact serving as general con-
tractor, and that Mathias Electric is on the job working with
its own employees as your subcontractor.
Please submit to me all correspondence related to the
Asgrow job, including the general contract, any electrical
subcontract, bids for electrical work, and records showing
the names, dates and hours worked by any employees per-
forming electrical work. Local 702 must insist that your
Company bargain in good faith over all conditions of em-
ployment, including subcontracting, and that our laid off
members and member applicants be recalled to perform
electrical work as provided for under the NLRB settlement
agreement.2

Respondent answered by letter dated November 6. Respondent
reminded the Union that it had withdrawn recognition and
therefore was not obligated to supply it any information. Re-
spondent also denied that it was serving as the general contrac-
tor for Asgrow’s new plant and also denied that Mathias Elec-
tric was its subcontractor. The Respondent requested the name
and telephone of the source of the Union’s information so that
it could “set the record straight.” The General Counsel alleges
that the refusal to provide this information was unlawful.
By letter dated January 18, 1999,3 the Union stated:

For the purpose of bargaining, I would like to request for the
second time all correspondence related to the Asgrow job, in-
cluding the general contract, any electrical subcontract, bids
for electrical work, and records showing the names, dates and
hours worked by any employees performing electrical work.

2 The General Counsel and the Union argue that this request for in-
formation covered all electrical work performed by Respondent, not
just at the Asgrow site. I disagree. In context, the Union’s request may
most reasonably be understood to cover electrical work only at the
Asgrow site.
3 The remaining dates are in 1999 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR BOARD 460
On April 8, the Regional Director approved a settlement
agreement signed by Respondent that provided that the Re-
spondent would not refuse to bargain with the Union by failing
to provide requested information and would not refuse to rec-
ognize the Union. The settlement agreement further provided
that Respondent would rescind its withdrawal of recognition
and provide the Union with the information requested in the
November 4, 1998 letter.
On April 13, Respondent sent the Union a letter that stated in
pertinent part:

Please contact me at your earliest convenience so that we can
discuss negotiation dates (I would propose April 29th at 10:00
a.m.) as well as which issues will be addressed and in which
order. In addition, if there is information you need prior to
continuing negotiations, please let me know.

The Union did not indicate that it needed any information to
resume bargaining.4 The parties returned to the bargaining
table on April 29, May 14, and June 10. At the first meeting
Paul Noble, business representative for the Union, testified that
the Union reiterated its desire for the information requested in
its November 4, 1998 letter. At the next meeting on May 14,
Noble testified that the Union told Respondent that it wanted to
know “who their electricians were, who was doing the work
and who had been doing it prior to us departing from negotia-
tions the first time.”5
On May 21, Respondent provided certain information re-
quested in the November 4 letter. Respondent sent the Union
copies of a letter dated June 3, 1998, from Respondent to The
Ken Bratney Company concerning a price quote Respondent
made for the cost of performing electrical work on the Asgrow
site. Respondent also sent the Union a subcontracting agree-
ment between The Ken Bratney Company and Respondent
concerning electrical work at the same site. The Ken Bratney
Company was the general contractor for work done at the As-
grow location. However, the Union was never provided the
information concerning the names, dates, and hours worked by
Respondent’s employees performing electrical work on the
Asgrow site.6
At the June 10 bargaining session, the Union discussed the
information that it had recently been provided. At the June 10
bargaining session the Union told Respondent that it wanted to
know who did the electrical work and the hours worked on the

4 Respondent argues that by failing to respond, the Union waived its
right to the information. I disagree. The settlement agreement pro-
vided that Respondent would provide the information; no additional
request was needed.
5 The General Counsel and the Union contend that the Union ex-
panded its request for information beyond that stated in its November 4
letter. To the extent that there is any direct evidence to support that
assertion, I do not credit that evidence. But this is ultimately of little
consequence because, as will be seen below, the Union expanded its
request for information at the June 10 meeting.
6 The Respondent asserts that the Union admitted that it did receive
this information. I reject this assertion. First, Respondent does not
contend that it actually provided this information to the Union; rather it
argues only that the Union admitted that it did. In any event, the testi-
mony of Noble that Respondent relies on was clarified thereafter in the
record. I credit the clarification.
Asgrow job but on other jobs as well.7 Black claimed that the
Union already had that information, but Respondent’s attorney
corrected him and said that the information had been provided
to the Board but not to the Union and that the Union would be
provided that information.
C. The Second Withdrawal of Recognition
On June 14 Respondent sent the Union a letter that stated:

Given that the bargaining unit consists of a single employee
(who has previously indicated that he does not wish to [be]
represented by Local 702) and, given that Local 702 has
failed and refused to negotiate in good faith with Black &
Sons over the past few months, am writing to inform you that
Ray Black & Sons has elected to withdraw recognition from
and cease negotiations with IBEW Local 702.

The Union responded by letter dated June 16; it claimed that it
was Respondent who was failing to bargain in good faith. The
Union further asserted that Respondent had never provided it
with the names of the employees who were performing the elec-
trical work at the Asgrow site, information that the Union had
specifically requested in its November 4, 1998 letter. The Union
claimed that Respondent had unilaterally changed the unit by
assigning electrical work to nonunit employees and then claiming
that there was only one person in the unit. In the letter the Union
claimed that at the bargaining session held on April 29, 1999,8 it
had requested the following additional information:

1. A list of all electrical work performed by Ray Black
& Sons Construction during the period from November 4,
1998, to the present time.
2. A list of all employees who performed this work.
3. A list of the number of hours spent performing elec-
trical work and the number of hours each individual em-
ployee spent performing this work.
4. A list of all work currently under contract by Ray
Black & Sons.
5. All electrical work which has been subcontracted by
Ray Black & Sons Construction to other firms or individu-
als since November 4, 1998.9
At the April 29 meeting, you promised to provide this
information. On May 21, 1999, the Union was provided
information that was specifically limited to some contrac-
tual information on the Asgrow job at Centralia. While
not showing the names, dates and hours worked, his mate-
rial showed that Ray Black & Sons Construction had con-
tracts to perform more electrical work than could be per-
formed by one employee.

. . . .

7 This is based on the credible testimony of Paul Noble, the Union’s
business representative.
8 As indicated above, I conclude that no such request was actually
made until the June 10 meeting.
9 The complaint alleges only that Respondent unlawfully failed to
provide “the names of each of Respondent’s employees who had per-
formed electrical work since March 27, 1998, and the number of hours
of electrical worked performed by each employee.”
RAY BLACK & SONS CONSTRUCTION 461
We need the additional records to determine the dates,
names and hours worked, etc., by employees performing
electrical work.

The Union asserted that it had reiterated its request for this
information at the June 10, 1999 bargaining meeting.
D. Employees in the Unit
Records show that for January 1 through June 15, 1999,
eight persons performed some amount of electrical work for
Respondent. Of these, four spent 4.4 percent of their time, or
less, performing electrical work. One of the remaining four,
Gerald Higgerson, spent 67.1 percent of his time performing
electrical work, but the Regional Director concluded that he
was a supervisor and there is no evidence that his duties have
changed. I, thus, also conclude that he is a supervisor and
therefore not part of the unit. Mark Collier spent 75.9 percent
of his time performing electrical work; he is the employee who
all parties agree is in the unit. The remaining two employees,
David Hester and Dean Marlow, spent 37.6 and 28.7 percent,
respectively, performing electrical work. It is these two em-
ployees who the General Counsel primarily relies on to show
that the unit has not been reduced to one person during this
time period. Records for 1998 show that 13 persons performed
some amount of electrical work. Nine of these performed elec-
trical work 2.1 percent of their time, or less. Supervisor Hig-
gerson spent 71.3 percent of his time doing so. Collier, Hester,
and Marlow spent 84, 29.5, and 19.6 percent, respectively.
However, during this period there were several weeks when
Hester and Marlow spent 24 hours or more performing electri-
cal work. Specifically Hester’s figures are:

10/14/98 40 hours
10/21/98 24 hours
11/4/98 40 hours
11/11/98 32 hours
12/16/98 40 hours
12/23/98 40 hours
12/30/98 28 hours
1/6/99 32 hours
1/13/99 34.5 hours
1/20/99 40 hours
Marlow’s figures are:

5/13/98 24 hours
11/4/98 32 hours
11/11/98 32 hours
12/16/98 32 hours
12/23/98 40 hours
1/6/99 40 hours
1/13/99 38 hours

In 1997, Collier again was at least one employee performing
unit work. During that year, Tom Cagle also performed electri-
cal work. The weeks he spent substantial time doing so are:

5/21/97 40 hours
5/28/97 29 hours
6/4/97 40 hours
6/11/97 35.5 hours
6/18/97 40 hours
6/25/97 25.5 hours
During this same 7-week period admitted unit employee Collier
performed electrical work 267.5 hours, for an average of 33.4
hours per week, performing electrical work. In addition, Re-
spondent recalled four employees to perform electrical work on
a specific project. Two of these employees worked for 3 con-
secutive weeks for a total of 102 hours and 113 hours, respec-
tively; the remaining two worked 4 consecutive weeks for a
total of 137 and 131.5 hours, respectively.
III. ANALYSIS
A. Withdrawal of Recognition
As indicated, Respondent contends that it acted lawfully
when it withdrew recognition from the Union because the unit
consisted of only a single employee. In McDaniel Electric, 313
NLRB 126 (1993), the Board stated:

The Board has long recognized the principle that col-
lective bargaining presupposes that there is more than one
eligible person who desires to bargain. Luckenbach
Steamship Co., 2 NLRB 181, 193 (1936). And the Board
has recognized that if it is not empowered to direct an
election and to certify a one-man unit, it logically follows
that the Act precludes the Board from directing an em-
ployer to bargain with respect to such a unit. Foreign Car
Center, 129 NLRB 319 (1960). In short, when the em-
ployee complement at issue has no “collective” character,
and thereby has no meaningful relationship to the practice
and procedure of collective bargaining that underlies the
statutory framework, it is altogether appropriate for the
Board to withhold its statutory representational and unfair
labor practice processes.
Before we will withhold those processes, however, we
will require proof that the purportedly single-employee
unit is a stable one, not merely a temporary occurrence.

Id. at 127.
In order to resolve whether there was a stable single-
employee unit, I must first define the unit. Here, the unit de-
scription is somewhat unusual. Instead of defining the unit as
“all employees performing electrical work” of “all electricians”
the unit is described as all employees who “primarily” engage
in electrical work, but excluding all other employees. In ascer-
taining the intent of this unit description, I am guided by the
framework set forth Northwest Community Hospital, 331
NLRB 307 (2000). Thus, where the unit description is clear
and unambiguous, the Board will hold the parties to the unit as
described. The General Counsel and the Union argue that the
word “primarily” should be ignored or, at least be interpreted to
mean something other that its normal meaning. They argue that
because Hestor and Marlow spent a substantial of time on a
yearly basis performing electrical work they should be included
in the unit even if they were not “primarily” performing electri-
cal work on a yearly basis. I reject that argument. I am not free
to ignore or modify clear language in the unit description, and
there is no need to examine extrinsic evidence where the unit
description is clear. I conclude that the mere fact that Hester
and Marlow worked substantial percentages of time on a yearly
basis performing electrical work is insufficient for them to be
included in this unit.
DECISIONS OF THE NATIONAL LABOR BOARD 462
More persuasive, however, is the argument that the unit de-
scription must be understood in light of industry practice. The
Board has long recognized that in the construction industry
employees may work for short periods of time on different
projects. Daniel Construction Co., 133 NLRB 387 (1961), as
modified 167 NLRB 1078 (1967). See also SAS Electrical
Services, 323 NLRB 1239, 1251–1252 (1997). Thus, the unit
description in this case must include employees who were
“primarily” engaged in electrical work for substantial periods
of time. Respondent argues against such an interpretation of
the unit description. It argues that in the Regional Director’s
decision the Regional Director himself used annual percentages
to define the scope of the unit. I find that argument unpersua-
sive. The Regional Director’s decision did not decide specifi-
cally how the word “primarily” was to be applied; it merely
dealt with the fact pattern presented in that case.
Examining the record in light of such an understanding of
the unit, it is apparent that employees other that Collier were
primarily engaged in electrical work. As more fully described
in the columns above, in 1997 Cagle was such an employee; in
1998 and 1999 Hester and Marlow were such employees. As
such they were included in the unit. Moreover, it is Respon-
dent’s burden to establish the existence of a stable single-
employee unit. Crispo Cake Cone Co., 190 NLRB 352, 354
(1971), enfd. 464 F.2d 233 (8th Cir. 1972). I note that there is
no evidence that Respondent is no longer seeking to perform
electrical work or that it has adopted a policy or practice to only
engage in electrical work that can be performed primarily by
only one employee. At the very least, Respondent has not
shown that the unit has declined to a stable single employee. It
follows that Respondent violated Section 8(a)(5) and (1) when
it withdrew recognition from the Union on May 21, 1998, and
June 14, 1999.
The Union argues that Respondent was not privileged to
withdraw recognition in any event even if the unit consisted of
a single employee. It argues that any assignment of electrical
work to nonunit employees would have been in breach of con-
tract. I am not persuaded by that argument because the issue of
whether those assignments were in breach of contract was not
fully litigated in this proceeding and I, thus, am unable to make
any findings in that regard.
B. Refusal to Provide Information
In fulfillment of its obligation to bargain in good faith, an
employer must provide to a union requested information that
has at least probable relevance and use to the union in fulfilling
its role as the collective-bargaining representative of the em-
ployees. NLRB v. Acme Industrial Co., 385 U.S. 423 (1967).
The standard used to ascertain relevancy is similar to that used
in discovery proceedings. The requested information need not
be dispositive; it need only have some bearing on the issues.
W-L Molding Co., 272 NLRB 1239 (1989).
As set forth above, Respondent never provided the Union
with “the names, dates and hours worked by any employees
performing electrical work” at the Asgrow site and never pro-
vided the Union with the names of each of Respondent’s em-
ployees who had performed electrical work since March 27,
1998, and the number of hours of electrical work performed by
each employee. The potential relevance of that information is
patent; it was necessary to determine whether the work per-
formed there was unit work; moreover, I note that Respondent
does not contend that the information lacked relevance. Under
these circumstances I conclude that Respondent violated Sec-
tion 8(a)(5) and (1) by failing to provide the Union with that
information.10 Moreover, by failing to fully provide the infor-
mation requested in the November 4, letter, Respondent
breached the terms of the settlement agreement. Thus, the Re-
gional Director properly set it aside.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Union, by virtue of Section 9(a) of the Act, is the
exclusive collective-bargaining representative of Respondent’s
employees in the following unit:

All employees who are primarily engaged in the performance
of electrical work, excluding office, clerical and professional
employees, guards and supervisors as defined in the Act and
all other employees.

4. By withdrawing recognition from the Union on May 21,
1998, and June 14, 1999, Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
5. By failing to provide the Union with requested informa-
tion that is relevant and reasonably necessary to the Union’s
performance of its obligations as the collective-bargaining rep-
resentative of employees in the unit, Respondent violated Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
6. Respondent has not violated the Act in any other manner
as alleged in the complaint.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. Respondent must rescind its withdrawal of
recognition of the Union and recognize the Union as the collec-
tive-bargaining representative of the employees in the unit.
Respondent must provide the Union with the information it has
unlawfully failed to supply.
[Recommended Order omitted from publication.]

10 I have considered the fact that Respondent delayed providing the
Union with the other information requested in the November 4 letter.
However, the General Counsel did not specifically allege in the com-
plaint that Respondent had unlawfully delayed providing this informa-
tion. Nor did the General Counsel raise that issue at the trial. Finally,
even in his post trial brief the General Counsel still does not raise this
issue. Under these circumstances I conclude that this issue has not
been fully litigated in that Respondent was not reasonably on notice
that this matter was an issue that needed to be addressed at the trial.