W.B. Skinner, Inc.

National Labor Relations Board - Board Decisions

May 15, 1987

283 N.L.R.B. 989 (N.L.R.B. 1987)

W. B. SKINNER, INC. 989
W. B. Skinner, Inc. and Operating Engineers, Local
Union No. 3. Case 32-CA-5053
15 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 24 April 1984 Administrative Law Judge
Timothy D. Nelson issued the attached decision.
The General Counsel and the Charging Party each
filed exceptions and supporting briefs, and the Re-
spondent filed a brief in response to the exceptions.
The National Labor Relations Board has delegat-
ed 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 correctly concluded, at footnote 10 of
his decision, that the pleadings and the - record
show that the Respondent is "an employer engaged
primarily in the building and construction indus-
try" within, the meaning of Section 8(f) of the Act.
In John Deklewa & Sons,, 282 NLRB 1375 (1987),
the Board overruled R. J. Smith Construction Co.,
191 NLRB, 693 (1971); enf. denied sub nom. Oper-
ating Engineers Local 150 v. NLRB,, 480 F.2d 1186
(D.C. Cir. 1973), abandoned the conversion doc-
trine, and modified unit scope rules ' in 8(f) cases.
The Board decided to apply the following princi-
ples:
(1) a collective-bargaining agreement permit-
ted by Section 8(f) shall be enforceable
through the mechanisms of Section 8(a)(5) and
Section 8(b)(3); (2) such agreements will not
bar 'the processing - of 'valid petitions filed pur-
suant to Section 9(c) and Section 9(e); (3) in
processing such, petitions, the appropriate unit
normally will be the single employer's employ-
ees i covered by the agreement; and (4) upon
the expiration of such agreements, the signato-
ry union will enjoy no presumption of majori-
ty status, and either party may repudiate the
8(f) bargaining relationship.
The Board also held at footnote 41: "[W]e will re-
quire the party asserting the existence of a 9(a) re-
lationship to prove it." Because, as found by the
judge in the instant case, the General Counsel
failed to demonstrate a 9(a) relationship, we find
that Section 8(f) applies and that Deklewa is con-
trolling.',
283 NLRB No. 149
Applying Deklewa to the instant case, we reverse
the judge and conclude that the Respondent violat-
ed Section 8(a)(5) and (1) of the Act by refusing to
provide certain information requested by the Union
on 28 September 1982. The contractual -history
shows that in 1973 the Respondent signed an agree-
ment binding it to certain provisions of it master
agreement between the Union and an employers'
association. In 1978 the Respondent signed another
agreement, which likewise incorporated a master
agreement and contained a provision binding the
Respondent to- future master agreements absent
action by -either party to terminate the agreement
prior to its 15 June 1980 expiration. There was no
evidence that either party took that action. A suc-
cessor master agreement was in effect between 16
June 1980 and 15 June 1983 during which time the
alleged unfair labor practice occurred.
Under the first Deklewa principle, the 1980-1983
collective-bargaining agreement is enforceable
under Section 8(a)(5). Under the fourth principle,
however, the Union enjoyed no presumption of
majority status following the contract's expiration
date, and at that point the. Respondent was free to
repudiate the 8(f) bargaining relationship. Because
the Union's request for information occurred
during the contract term, the issue before us is
whether the Respondent had, a duty to provide the
requested information: specifically, an audit of cer-
tain of the Respondent's books and ledgers neces-
sary to ascertain' whether the Respondent was
complying with its contractual obligation to make
fringe benefit contributions on behalf of unit em-
ployees.
We briefly summarize the facts set forth by the
judge. The 1980-1983 master agreement contained
a provision obligating the ' Respondent' to provide
payroll and other records to the Union "in the
event of a specific dispute regarding time, wages or
fringe benefit payment of its Employees, regardless
of classification, or a dispute regarding owner oper-
ators." During January through April 1982 the Re-
spondent reported to the benefit- trust that it em-
ployed no persons for whom reports 'should be
filed or trust contributions made. However, in May
1982 the Union began to suspect that the Respond-
ent was not honoring its 'contractual obligation to
make fringe benefit payments. A union agent had
visited a jobsite- 'of the Respondent and ' learned
from two employees that they had been employed
by the Respondent for "some time. The Respond-
ent's owner later told the union agent that hours
- "should have been" reported for the two' operators.
In early July 1982, the Union informed the Re-
spondent that it' wished to audit its employment
records with respect to possible contract violations.
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On 28 September . 1982 the Union specifically re-
quested access to, the Respondent's timecards for
operating engineers, payroll records, ledgers on
cash disbursements and,accounts payable , and se-
lected invoices for the period since June 1977. On
4 November 1982 the Respondent , without chal-
lenging the Union's contractual entitlement to the
requested information , refused to allow the audit
and stated that "we are not planning to cooperate
or adhere to any of your contract agreements."
It is well settled that a labor organization, in its
capacity as a collective -bargaining representative, is
entitled ,, on appropriate request, to information
from the employer that is needed for the proper
performance of its duty to police compliance with
a collective-bargaining agreement . NLRB v. Acme
Industrial Co., 385 U.S. 432 (1967). Certain data,
such as wage and related information pertaining to
employees _in the bargaining unit , is presumptively
relevant because such data "concerns the core of
the employer -employee relationship ." Curtiss-
Wright Corp. v. NLRB, 347 F.2d 61 (3d Cir. 19,65).
In, addition, if requested information relates to an
existing contract provision it thus is "information
that, is, demonstrably necessary" to the union "if it
,is to perform its duty to enforce the agreement."
A. S. Abell Co., 230 NLRB 1112-1113 (1977).
In this case, the Union received information from
two employees and from the Respondent itself that
reasonably led- it to believe that the Respondent
was avoiding a contractual obligation to contribute
to benefit funds . On that basis, the Union sought to
examine the timecards of all employees who were
either operating engineers or who were performing
operating engineer work. Such an examination
would enable the Union to determine whether indi-
viduals in that category were paid the contractual
amounts as a basis for determining the proper con-
tributions due the trust funds . Such information di-
rectly relating , to unit personnel is presumptively
relevant.
The Union also requested information pertaining
to certain of the Respondent's ledgers as well as
access to any invoices which may have generated
payments recorded in those ledgers . An examina-
tion of the - ledgers might reveal payments to indi-
viduals, including owner-operators, performing op-
erating engineer work, and the, requested invoices
could reflect the hours worked by owner-operators
generating such payments . In - L. M. Settles Con-
struction Co., 259, NLRB 379, 382 (1981), such
ledger information was found presumptively rele-
vant.
As the Union had reasonable grounds to believe
that the Respondent was not adhering to a contrac-
tual commitment , its 28 September 1982 request for
an audit met the tests of necessity and relevance.
Moreover, as noted above , the collective-bargain-
ing agreement contains a specific provision requir-
ing the Respondent ` to provide payroll and other
records to the Union "in the event of a specific dis-
pute regarding time, wages or fringe benefit pay-
ment of its Employees , regardless of classification,
or a dispute regarding owner operators ," a provi-
sion which the Respondent does not contest applies
to -the present dispute . Accordingly, we find that
the Respondent violated Section 8(a)(5) and (1) of
the Act by breaching an obligation enforceable
under Deklewa principles when it refused to supply
requested information under either the independent
statutory test of necessity and relevance for polic-
ing collective bargaining agreements - or -under the
specific terms of the contract. -
CONCLUSIONS OF LAW
1. The 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. By refusing, during the term of its 1980-,1983
collective-bargaining agreement with the Union, to
supply the Union with relevant information which
was required under the terms of the collective-bar-
gaining agreement and necessary for it to adminis-
ter the collective-bargaining agreement properly,
the Respondent has engaged in an unfair labor
practice within the meaning of Section 8 (a)(5) and
(1) of the Act.
4. The unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged
in an unfair labor practice , we shall order that it
cease and desist and, take certain affirmative action
necessary to effectuate the policies of the Act. We
shall order the Respondent to provide, on request,
the information requested in the Union's letter of
28 September 1982.
ORDER
The National Labor Relations Board orders that
the Respondent, W. B. Skinner, Inc., Pleasanton,
California, its officers , agents , successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing , during the term of , a collective-bar-
gaining agreement with Operating Engineers,
Local Union No. 3, to supply the Union, on re-
quest, relevant information required under the
W. B. SKINNER , INC. 991
terms of the collective-bargaining agreement and
necessary for the Union to administer the collec-
tive-bargaining agreement properly.
(b), In any like or related manner - interfering
with, restraining , or coercing employees in the ex-
ercise of -the rights guaranteed them by Section 7
of the Act. -
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request , furnish the Union with the infor-
mation sought by the Union in its letter of 28 Sep-
tember 1982.
(b) Post at its Pleasanton , California office copies
of the attached notice marked "Appendix."'
Copies of the notice, on forms provided by the Re-
gional Director for Region 32, after being signed
by the Respondent 's authorized representative,
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 notices are not altered ,- defaced,
or covered by any other material.
(c) Sign and return to the Regional Director suf-
ficient copies of the attached notice marked "Ap-
pendix" for posting by Operating Engineers, Local
Union No . 3; if willing , in conspicuous places
where notices to employees , and members are cus-
tomarily posted.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
1 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted- Pursuant to,a Judgment of
the -Umted States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse, during the term of a col-
lective-bargaining agreement with Operating Engi-
neers, Local Union No. 3, to supply the Union, on
request, relevant information required under the
terms of the collective-bargaining agreement and
which is necessary for the Union to administer the'
collective-bargaining agreement properly.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, furnish the Union with the
information sought by it in its letter to us dated 28
September 1982.
W. B. SKINNER, INC. ,
Leslie Van Houten and Pdtricia Milowiclri, Esqs., for the
General Counsel.
Jerrold C. Schaefer, Esq., of San Francisco , California,
for the Respondent.
Lawrence Miller, Esq, and Fred Morgan, Esq. (Bronson,
Bronson & McKinnon); of San Francisco, California,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON , Administrative Law Judge. I
heard this case in trial at Oakland , California, on Febru-
ary 13, 1984. It arose when Operating Engineers, Local
Union , No . 3 (Union) filed unfair labor practice charges
against W. B. Skinner , Inc. (Respondent) on November
22,.1982.,
After an administrative investigation , the Regional Di-
rector for Region 32 of, the National Labor Relations
Board (Board) issued a complaint against Respondent on
February 8, 1983 . That .complaint alleged that Respond-
ent violated Section 8(a)(5) and, derivatively, Section
8(a)(1) of the National Labor Relations Act (Ac t) by re-
fusing to- furnish information requested by the Union in
July and September 1982 that was relevant and necessary
to the Union 's function as the exclusive bargaining repre-
sentative in a certain unit of Respondent 's employees.
Respondent duly answered the complaint , denying ma-
terial allegations. ' On July 28, 1983 , however, the Re-
gional Director approved an informal settlement agree-
ment with Respondent ' in which Respondent did not
admit having committed any unfair labor practices but
promised nevertheless , (a) to furnish the information at
issue to- the Union, and (b) not to "refuse to bargain col-
lectively ... by refusing to supply relevant information
... which is necessary ... to properly administer the
collective bargaining agreement in effect between [Re-
spondent] and the Union ." In accordance with the terms
of the settlement ,' the Regional Director withdrew the
first complaint.
Subsequently ,' for reasons not explained -or defended in
this proceeding, Respondent reneged on the settlement
commitment to furnish the disputed information. This
caused the Regional Director to issue and "Order With-
drawing Approval of and Setting Aside Settlement
Agreement and [new] Complaint and Notice of Hear-
ing." The second complaint is materially the same as the
first one.
Respondent's answer to the second complaint, like its
initial answer, admits that its operations are properly sub-
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ject to the- jurisdiction of the Board, and that it refused
to provide the information in question to the Union. Re-
spondent has denied everything else of consequence; in-
cluding that the Union ever occupied majority represent-
ative status under Section 9(a) of the Act in an appropri-
ate unit of Respondent 's employees , and that the infor-
mation sought by the Union was relevant and necessary
to its representative function.
The trial was brief, consisting of the General Counsel's
introduction of mostly documentary and stipulative evi-
dence, supplemented by the Union's introduction of some
additional records and testimony . Respondent did not
come forward with additional evidence after the General
Counsel and the Union had rested.
All parties filed posttrial briefs which I have fully con-
sidered.
The Issues
There are two broad issues:
1. Did the General Counsels introduce enough evi-
dence to show , prima facie , that the Union occupied 9(a)
majority representative status ,at any time before the al-
leged unfair practices? As narrowed by this litigation,
this question -subsumes at least two others:
(a) Does a, presumption of the Union 's 9(a) status
derive simply from proof that Respondent , construction
employer, signed "short-form" agreements with the
Union in 1973 and/or in 1978?
(b) If not, is there independent evidence in the record
that the Union ' achieved 9(a) majority status at some rele-
vant point in its relationship with Respondent? '
2. If the Union was the 9(a) representative of Respond-
ent's employees at some relevant point , was Respondent
statutorily ' obliged to turn over the specific information
at issue?
I conclude below that the first question must be an-
swered in the negative ; accordingly, I do not reach the
second question.
On the whole record, I make these
I. THRESHOLD FINDINGS OF FACT
A. Introduction
Respondent , installs , underground conduits in a north-
ern California territory that is not more specifically de-
fined in the record . 2 It operates from offices in the great-
er San Francisco Bay area,city of Pleasanton. The busi-
ness, uses heavy excavation equipment, such as backhoes,
but, it is not clear whether Respondent owns any such
pieces of equipment or, alternatively, whether it relies on
owner/operators to furnish the same. The record sketch-
ily reveals that some kind of employment relationship ex-
isted during certain periods between Respondent and
certain , named individuals, but it is not at all clear wheth-
er in any given case those individuals were
owner/operators , or , were , instead, merely operators.
' References here and below to the General Counsel generally include
the Charging Party Union ; the exceptions are self-evident.
2 In the 12 months before-the complaint issued Respondent performed
more than $50,000 worth of services for customers in California whose
operations are within the "direct" jurisdictional guidelines promulgated
by the Board
Similarly, to the extent that some or all, of the individuals
were owner/operators, the record will not permit a find-
ing whether they were "employees" within the meaning
of Section 2(3) of the Act or were, alternatively, "inde-
pendent contractors " within the meaning of the 'same
section.
I return to those-and other-unclear matters later
after setting forth what the General Counsel views as the
dispositive facts of the case relating to the threshold issue
of the Union's 9(a) status.
B. The Labor Agreements
On April 19, 1973, Respondent's owner, W. B. Skin-
ner, signed a "short-form" document captioned "North-
ern California Construction Agreement," which provid-
ed, inter alia, that Respondent would be bound to' certain
terms contained in a then-current "master Agreement"
between the Union and Associated General Contractors
of California, Inc. At that time, Skinner reported that he
employed one "engineer." We do not know from the
record whether, if-at all, Respondent ever engaged addi-
tional workers in the contract unit during the 3-year
term of that first short-form agreement or, if so, whether
Respondent complied with the substantive terms of the
agreement. We do not know any other circumstances
surrounding the initial contracting on April 19, 1973.
On February 8, 1978, under similarly unclear circum-
stances, W. B. Skinner signed another such -short-form
agreement, this time indicating on that document that he
employed three "engineers," That short-form agreement
likewise incorporated by reference most terms in a -then-
current Master ' Agreement. It also contained an "ever-
green" provision, in substance, that Respondent would
be bound by "future Master Agreements" unless ,either
party were to take steps to terminate-the current agree-
ment within 60 to 90 days of its scheduled expiration on
June 15, 1980.
The record contains no indication that either party
ever used contractually specified means to "terminate"
the 1978 short-form, contract before its scheduled expira-
tion. There was a successor Master Agreement in effect
between June 16, 1980, and June 15, 1983, the period
during which the alleged unfair practices occurred.
The 1980-1983 Master Agreement contains no com-
prehensive description of the unit it covers. It purports,
at section 1.00.00, et seq., to- cover literally hundreds of
construction and.related offsite job classifications. It con-
tains union-security provisions at section 4.02.00 and
4.02.01 which require covered employees 'doing jobsite
construction work to join, the Union "within ` 8 days"
after they begin working. It has a separate provision, not
applicable to the construction unit involved herein,3 re-
quiring offsite employees-to join "within 31 days" after
they begin working. It makes special reference -to
"Owner-Operators" in a variety of provisions within sec-
tion 4.04.00, exempting them from some provisions (e.g.,
section 4.04.03), and stipulating at section 4.04.06 that
8 For reasons which are not evident, the General Counsel has vaguely
put into issue whether or not Respondent is a construction industry em-
ployer. For reasons more fully explicated at fn 10, I find that Respond-
ent is such a construction employer.
W. B. SKINNER, INC.
they "shall be carried on the payroll' of the Individual
Employer as an Operating Engineer, and Employee, and,
as such employee, all the terms and conditions of this
Master Agreement . . . shall be applicable to him, except
as provided elsewhere in this Section." Another provi-
sion in that section (4.04.17) provides, however:
No Owner-Operator shall have any right to enforce
this Agreement by grievance, arbitration, or other-
wise until he has been placed on the payroll of an
Individual Employer as an Employee.
The Master Agreement also contains a provision at
section 3.02.00 for the furnishing by the Employer of
payroll and other records to the Union "in the event of a
specific dispute regarding time, wages or fringe benefit
payment of its Employees, regardless of classification, or
a dispute regarding owner-operators."
C. The Alleged Unfair Labor Practices
The Union began to suspect in late May 1982 that Re-
spondent was' not honoring the Master Agreement by
failing .to make accurate monthly reports to the fringe
benefit trust about the number of unit personnel it em-
ployed and the hours they worked and by not making
fringe trust contributions for persons who should have
been reported on but were not. In the 4 months before
May,1982, Respondent had sent regular report forms to
the trust, but had indicated that it employed no persons
for whom reports should be filed or trust contributions
made.
The Union's suspicions were originally aroused after
one of its agents, Datson, made two visits in late May to
a construction project at Candlestick Park near San
Francisco and was led to believe from conversations
there with two operators (Norwood and Clifton) that
they had been employed by Skinner at that job for some
time (in the case of Norwood purportedly as an owner-
operator). Subsequent conversations between Datson and
W. B. Skinner, in which Skinner admitted that hours
"should have been" reported for each of these individ-
uals, were not enough to satisfy Datson that Respondent
had merely made a good-faith error in earlier reports. As
a result, Datson sought, an "audit" of Respondent's
books.
Another agent of the Union, Ivy, later sent a pair of
letters to Respondent on July 22, 1982, each .stating in
substance that the Union wished to audit Respondent's
employment records and would follow up with a specific
appointment letter setting forth the nature of the infor-
mation to be audited. One letter addressed itself to a pos-
sible, contract violation with respect to, "'owner-opera-
tors"; the other simply expressed a desire to "ascertain"
whether Respondent was in compliance with "stipulated
wages and fringe benefits."
On, September 28, 1982, the Union's agent, Hendricks,
sent a letter to Respondent containing this material text:
'Please be advised we will be at your premises at
9:30 a.m: on October 19, 1982, to conduct an audit
of your records in accordance with our previous
notification.
993
At the aforementioned time, we shall expect to
have the following records available:
1. All time cards for employees who are Operat-
ing Engineer's or who are performing operating en-
gineer work.
2. All payroll records consistent with item #1
above.
3. Cash disbursements ledger.
4. Accounts payables ledger.
5. Selected invoices as primary documents in ac-
cordance with item #4 above.
6. These records should be available commencing
with June 1977 through the present.
Should you have any questions in this matter,
please direct them to this writer.
The appointment was later rescheduled, but Respond-
ent ultimately refused to allow the audit, formally stating
in a letter to the Union dated November 4, 1982, inter
alia: "[W]e are not planning to cooperate -or adhere to
any of your contract agreements."
As noted earlier, Respondent's refusal to furnish the
information sought in the Union's letter of September 28,
1982, triggered the filing of charges with a Regional
Office of the Board and the issuance of a complaint by
the Regional Director that Respondent had thereby vio-
lated Section 8(a)(5) and (1) 'of the Act. This alleged vio-
lation was the subject of a settlement agreement that was
later set aside when Respondent, after stalling and eva-
sion, decided not to honor its settlement commitment to
furnish the information at issue.4
There are more facts in this record, but discussion of
them may be deferred until later, for the,' General Coun-
sel rests her case on essentially the showing outlined
above. As discussed in greater detail, infra, the General
Counsel argues that the necessary threshold showing that
a 9(a) relationship existed between Respondent and the
Union was perfected by proof that Respondent signed a
short-form agreement (either in 1913 or ,1978; it does not
matter) and that, by operation of law, that 9(a) relation-
ship has continued, to exist during the terms of the suc-
cessive Master Agreements, including at the time in No-
vember 1982 when Respondent` refused to submit to the
Union's audit.
It is thus useful to digress from the almost complete
narration of facts to analyze the potential validity of the
General Counsel's 'threshold proposition 'about the ade-
quacy of her showing that a' 9(a) relationship existed.
For, if she is correct, then the additional' facts are of no
significance. Accordingly, I now turn to such an analy-
sis.
4 Those circumstances are not further described herein because the
General Counsel on brief has waived and disclaimed any contention that
the settlement created a bargaining obligation under the Act independent
of that which existed before it was entered into by Respondent, or that
Respondent's breach of the settlement has independent character as an
unfair labor practice I return briefly to this subject in, the "Analysis,"
infra
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. ANALYSIS OF.SECTION 9 (A) ISSUE; FURTHER
FINDINGS; CONCLUSIONS OF LAW
A. General Legal Setting
All parties acknowledge the existence of some legal
principles of general application herein . It is thus admit-
ted that facially lawful labor agreements reached in the
nonconstruction sector carry with them a presumption
that the contracting union enjoyed 9(a) majority status5
at-the time that recognition was initially extended by the
contracting employer , and that such . a presumption of
majority status generally continues through the term of
the union contract, including renewals . See generally
NLRB v. Iron Workers Local 103 (Higdon Contracting),
434 U.S. 335 , 343 fn. 8 (1978). See also , e.g., Pioneer Inn
v. NLRB, 578 F .2d 835 , 837-838 (9th Cir. '1978); Bartend-
ers Assn. of Pocatello, 213 NLRB 651 , 652 (1974).6
But Higdon , supra, also teaches that , when ,a "pre-hire"
labor agreement is entered into in the construction indus-
try, the contracting union is not entitled to the ordinary
presumptions that attend nonconstruction labor agree-
ments. As the Court noted, nonconstruction labor agree-
ments would be unlawful under Section 8(a)(2) of the
Act if the contracting union did not occupy 9(a) status
when first recognized ,7 But construction unions and em-
ployers enjoy a special statutory exemption from the
stricture of Section 8(a)(2) in the form of Section 8(f) of
the Act. Id. - at ' 345 See also Jim McNeff Inc. v. Todd,
461 U.S . 260, 265 (1983).
Section 8(f) allows construction labor agreements to be
reached without the union 's majority status having first
been established pursuant to Section 9 . But "8(f) con-
tracts," because they are not entered into on a majority
showing ' by the union, suffer from certain well-estab-
lished ' limitations not shared by "9(a)" labor agreements.
Higdon, supra, 434 U.S. at 345. For our purposes, the
most significant of these limitations is that 8 '(f) contracts
carry with them no presumption that the contracting
union :enjoyed majority status at the inception of the bar-
gaining relationship . Rather , the original 8(f) relationship
must be shown to have "ripened" into a 9(a) relationship
at some later.point before the union 's majority status will
be presumed continuously to exist- thereafter. Higdon,
supra, 434 U.S. at 341„344-345. See also Ruttman Con-
struction Co., 191 NLRB 701, 702 (1971); R. J. Smith
Construction Co., 191 NLRB 693 (1971), enf. denied sub
nom. Operating Engineers v. NLRB, 480 F.2d 1186 (D.C.
Cir. 1973); Construction Erectors, 265 NLRB 786 (1982).
Another,,,corollary feature of 8(f) contracts is that they
are voidable and, may be repudiated at will until the
5 Sec. 9(a) of the Act refers to labor organizations which have been
"designated or selected .. by the majority of the employer's employ-
ees" in an appropriate bargaining unit as their exclusive representative A
union's "Section 9(a) status " thus triggers a duty on the employer's part
under Sec. 8(a)(5) and 8(d) to accord exclusive recognition to it and to
bargain in good faith with it about wages and other terms and conditions
of employment.
-S There are some exceptions not pertinent here See generally Hershey
Chocolate Corp., 121 NLRB 901 (1958), en£ denied 297 F 2d 286 (3d Cit.
1961) -
° 434 U S at, 344-346, citing Ladies Garment Workers v. NLRB, 366
U.S. 731, 737 (1961).
Union has attained 9(a) status . Higdon, supra; R. J Smith
Construction , supra.
This discussion should help illuminate the central point
at issue in this case; for the record is silent as to the cir-
cumstances underlying Respondent 's signing of either, the
1973 short-form labor agreement or the 197,8 short-form.
And the silence of the record on this point is seized on
by each party's lawyer as -a dispositive factor requiring
vindication of her/his position.,
. Obviously, however, one litigant will normally suffer
if his opponent is to benefit from the absence of evidence
on a material point. And in this case whether the short-
form contracts were "8(f)"-as opposed to "9(a)"-in
character will be the dispositive question ; for I can dis-
cern no independent basis for inferring from this spare
record that the Union in fact occupied majority status in
an appropriate unit-of Respondent 's employees at some
relevant time before the alleged unfair labor practices.8
B. The Question Restated, the Parties ' Contentions
The General Counsel characterizes this case as central-
ly raising a "burden-of-proof" question . This character-
ization carries a potential to mislead because there is no
dispute over the rule that the General Counsel carries
the ultimate burden of establishing each element of the
Government's case by a preponderance of the credible
evidence in the record as a whole . Neither is there any
debate about the notion that in a prosecution like this
one, alleging a refusal to bargain in violation of Section
8(a)(5) of the Act, it is the General Counsel who has the
burden of establishing that the Union enjoyed 9 (a) repre-
sentative status at some relevant time before Respond-
ent's alleged unfair practices took place.
The question may therefore be restated as follows: Is
the General Counsel 's mere proof of the existence of
either of the short-form agreements enough , prima facie,
to require Respondent to come forward to show that the
Union was not the 9(a) representative -when those agree-
ments were entered into if Respondent wished to avoid -a
finding that the Union was such a majority representative
then and during subsequent contract periods?,
Arguing the affirmative , the General Counsel seeks to
vindicate the as-yet-unsupported proposition that a labor
agreement that is "lawful on its face ,"9 and is reached in
the construction industry , 10 should carry with it the
8 The matter of independent proof bearing on themajority question is
addressed infra.
9 Elsewhere , the General Counsel uses the considerably less meaning-
ful expression "fair and regular", and sometimes she simply refers to con-
tracts that are "fair on their face ," a meaningless abstraction that the
General Counsel cannot seiiously contend would help decide whether a
construction labor agreement ought to carry a presumption that the sig-
natory union occupied 9(a) status,
10 On brief, the General Counsel begins her argument on the 9 (a) issue
with this unsettling assertion
First, the record does not establish that Respondent is an employer
in the construction industry` within the meanmg'of'Section 8(f).
This triggered a return to the pleadings, the transcript,,and the,exhibits to
verify that , indeed (as alleged and admitted ), Respondent has been en-
gaged at all times material "in the installation of underground conduits",
indeed, that the labor agreements relied on by the General Counsel
prdminently feature the word "construction"in them and incorporate by
reference the terms of a Master Agreement with an association of "Gen-
Continued
W. B. SKINNER, INC. 995
same presumptions that attend its nonconstruction indus-
try contractual counterparts, i.e., that the contracting
union occupied majority, status when the contract -was
entered into, and continued in that majority status there-
after, through successive contractual periods.
In opposition, Respondent insists that the realities of
the construction industry, especially those influencing
the enactment of Section 8(f), demand instead that con-
struction labor agreements be presumed to be no more
than "pre-hire" contracts of the type authorized by that
section.
C. Conclusions Concerning the General Counsel's
"Contract Presumption" of 9(a) Status
The question as restated above is not a simple one; it
implicates many legal areas; it affects construction prac-
tices; and it bears heavily on the ability of the Office of
the General Counsel to investigate and process construc-
tion industry cases. It necessarily has impact also at the
trial and -decisional stages of the Board's processes.
Clearly, if all it took is a signed "short-form" or other
species of individual construction labor agreement to
show, prima facie, that a construction union was the 9(a)
representative of a unit of construction employees, then
the Board's limited resources would not be expended to
the degree they are now in efforts to reconstruct from
equivocal data the arguably fictional point at which the
9(a) butterfly may have emerged from the 8(f) chrysa-
lis. I I
These considerations of private and public institutional
stability and efficiency are not insubstantial, but they are
not directly urged by the General Counsel. In any case,
eral Contractors", and, indeed, that the only persons claimed by the Gen-
eral Counsel to be legitimately part of the contract unit whose jobs were
specifically identified in the record were jobsite backhoe operators (see
findings, supra, and infra at sec. IV,D)
It is apparently the General Counsel's belief that, if this record did not
show (as it does, over and over) that Respondent is in the construction
industry, then the short-form contracts signed by Respondent would be
more readily presumed to carry 9(a) trappings.
It is good that the General Counsel eventually concedes, albeit grudg-
ingly, that Respondent "does appear" to be in the construction industry
This is not only because the record she made shows this to be the case
without contradiction, but also because her case will collapse without a
finding that Respondent is "primarily engaged in the building and con-
struction industry" within the meaning of Sec 8(f) For the agreements
she relies on contain 8-day union-security clauses for jobsite employees
that, she would not deny, are applicable to, e.g, the two backhoe opera-
tors on the May 1982 Candlestick Park job. And those otherwise imper-
missibly short union-security clauses are saved only by the 8(f)(2) exemp-
tion applicable only to construction industry employers and unions Be-
cause the General Counsel stipulates that a labor agreement must be
"lawful on its face" to enjoy her proposed 9(a) presumption, it is curious
that she would in anyway suggest that she has not, proved that Respond-
ent is in the construction business.
11 I refer specifically to the drawn-out and frequently inconclusive
searches of remote memories, payroll data, and other company and union
and joint trust records that, the Board and parties to Board proceedings
often have been required to undertake in pursuit of the notion of a "rip-
ened" bargaining relationship See, e.g, Construction Erectors, 265 NLRB
786 (1982) (circuit court remand requiring second analysis of 1977 unit
employee configurations as inferable from "myriad of exhibits," id at
787), Redlands Construction Co, 265 NLRB 586 (1982) (examination of 8
years of hiring records); Carrothers Construction Co., 258 NLRB 175
(1981) (Board remand for more data about unit employment in 1966),
Hageman Underground Construction, 253 NLRB 60 (1480) (analysis of em-
ployment data on multiple jobsites between 1977 and 1978)
they would be more properly addressed in the first in-
stance at the Board level of these proceedings should it
come to that. But my rejections of the General Counsel's
position as set forth below is not intended to suggest that
brighter and more realistic lines are not needed in this
legal area.
There is no direct legal authority-and nothing indi-
rectly persuasive in the cases-for the proposition that a
construction labor agreement may be presumed to have
derived at its inception from a 9(a) labor- relationship. .
The General Counsel points to Carmichael Construc-
tion Co., 258 NLRB 226 (1981), and Redlands Construc-
tion Co., supra, as indirect support for her contention
that the "burden of proof' is on the employer to show
that his construction labor agreement was not entered
into under 9(a) circumstances.
Carmichael contains dicta at fn. 1 ' on which I believe
the General Counsel leans too hard; for the strict hold-
ing, expressed in the same footnote passage, derived from
the Board's finding that the employer had "conceded the
majority status of the Union at all times prior to .. .
their . . . refusals to bargain." Thus, Carmichael did not
decide our question. And Carmichael seems more striking
for its clear "disavow[al of] the Administrative Law
Judge's finding that `[t]he execution of succeeding con-
tracts makes Section 8(f) irrelevant and, therefore, raises
the presumption that the Union was the majority repre-
sentative of the unit employees."' Ibid.
Redlands provides even less nourishment for the' Gen-
eral Counsel's theory. There, the Board also expressly re-
fused to rely on the administrative law judge's discussion
of Carmichael and found instead that "the record affirm-
atively establishes such a majority by direct evidence,
contrary to the fording of the Administrative Law
Judge." 265 NLRB at 586.
Notwithstanding the lack of any clear supporting
precedent, the General Counsel came to trial with the
belief that it was not her affirmative obligation to estab-
lish the Union's 9(a) status by means other than proof of
the existence of the short-forms. She argued at trial that
it was Respondent's duty to plead and prove that the
Union had merely been recognized under Section 8(f) to
"rebut" the "presumption" of the Union's 9(a) status,'
which was assertedly created by proof of the short-
forms. Invited at trial to cite authority for her assertion
that "8(f) is an affirmative defense in such circum-
stances, the General Counsel failed to identify any such
authority in her brief. Respondent called to my attention
certain dicta to this effect in the administrative law
judge's decision in Bay Area Sealers, 251 NLRB 89, 129
(1980). I agree with Respondent that Bay Area Sealers
does not turn on the ,administrative law judge's "affirma-
tive defense" dicta' and that that case is merely another
in which the Board has ultimately relied on independent
proof that, the union enjoyed majority status When the
bargaining relationship was entered into. 251 NLRB at
89.
After the parties had lodged-their posttrial briefs, the
Board issued its decision in Stine Scovil Construction Co.,
269 NLRB 465 (1984), which seems even more clearly to
have considered and rejected the notion that "8(f) is an
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
affirmative defense."' There, the Board (Member Zim-
merman dissenting) denied the General Counsel 's Motion
for Summary Judgment , saying (id. at 465-466):
We note that the complaint fails to establish, by
allegations or statements of fact, information neces-
sary to determine that -the Respondent has violated
Section 8(a)(1) and (5) of the Act. Absent from, the
complaint are allegations or statements of fact that
the Union is the lawful representative of the Com-
pany's employees under Section 9(a) of the Act;
that the agreement between the parties is or not an 8(1)
contract; that describe article 15 and its lawfulness
under Section 8(e)'s -proviso.
Accordingly, we decline to grant the General
Counsel 's Motion for Summary Judgment and
remand the proceeding to the Regional Director for
appropriate action. [Emphasis added.]
If Stine Scovil Construction , supra, is not dispositive on
the point , the remaining observations would cause me to
reject the General Counsel's view in any case.
There is nothing in the Board 's experience of empirical
"realities" in the construction industry ,, nor in the legisla-
tive history underlying Section 8(f), to justify the pre-
sumption of fact , that a construction labor agreement
arose- in a 9(a) context . Indeed, empirically, we know-
and Congress presumed-that union contracts in the con-
struction industry , often are-and need to be-concluded
before the employer has hired any workers.12 And the
mere fact that 8(f) agreements are common to the con-
struction industry is enough to cause me to view warily
any suggestion that a construction labor agreement ought
to carry a presumption that -the union signatory enjoyed
9(a) status from the outset.13
These doubts are not deflected by any coherent state-
ment by the General Counsel of other possible counter-
vailing considerations be they matters of law, policy, or
equity . In the absence of any such arguments , I will not
independently pursue such questions further. I would
simply reject as , grounded in law or reality the pre-
sumption proposed by, the General Counsel that a con-
struction labor agreement arose in a 9 (a)-as opposed to
8(f)-context.
12 l do not here repeat the often-cited portions of the legislative histo-
ry of Sec. 8(f) in which considerations of industry necessity are invoked
as the basis for the exemption ,of prehire contracts from the more general
proscriptions of Sec. 8(a)(2). See, e.g., Higdon, supra , 434 U.S . at 348-
349
13 We are not truly presented here with the question of the weight to
be accorded to a construction industry relationship involving "successive-
ly" applied labor agreements in determining whether a ripened 9(a) rela-
tionship has, been achieved There is no evidence that Respondent con-
tinuously applied to its unit personnel, if any, the terms of each of the
succeeding Master Agreements following its signing of the initial 1973
short-form containing , an evergreen clause (the initial point at which the
General Counsel alleges in the complaint that the 9 (a) relationship arose).
Indeed, the absence of proof about the subsequent relationship (if any)
between 1973 and 1978 and the paucity of evidence about the relationship
between , 1978 and 1982 suggest instead that Respondent and the Union
were virtual strangers . Accordingly, this is not the record on which to
revive the argument that a "successive" construction industry labor rela-
tionship may justify an inference that the necessary 9(a) transformation
has occurred. '
Accordingly, I conclude that the General Counsel has
not, by the mere introduction of either of -the short-form
labor agreements signed by Skinner in-1973 and 1978, es-
tablished that Respondent owed the Union a statutory
duty of recognition at either point . If that duty can be
said to. have arisen at all, it would have to- derive from
some independent circumstances , a possibility that I ad-
dress briefly next.
D. Is There Independent Evidence of the Union's 9(a)
Status? Findings and Conclusions
If we must look elsewhere for evidence that the Union
achieved 9(a) majority status , in an appropriate unit of
Respondent's employees , then the main obstacles must be
identified ; for an attempt to reconstruct a union "majori-
ty" configuration at some historical point in Respond-
ent's operations from the scant evidence on the subject
requires the tools of archaeology , not those of legal sci-
ence. There is , at the outset, the difficulty in defining
precisely the unit jobs that are involved here . Relying on
a presumption that a contractually covered unit is appro-
priate, the General Counsel describes the unit in the
complaint as "All ... employees performing work [for
Respondent] covered by and within the job classifica-
tions set forth in the [1980-1983 Master Agreement]."
But there are hundreds of such classifications, including
scores that clearly are not applicable to Respondent's op-
eration ; and so the question of the scope of the unit of
Respondent 's employees is to some extent begged by
such a characterization . All we know on this record is
that Respondent used at least two persons on a backhoe
on the May 1982 Candlestick Park job (whether using
one or more owner/operators is not clear). 14 There is
evidence that Respondent employed other persons-
members of the Union-at various times. But that evi-
dence does not disclose what their jobs were, whether
they were owner/operators, nor whether they worked
on any common days or , if. so, at the same-or differ-
ent jobsites.1 s -
14 There is evidence of a conversation between the Union's agent,
Datson, and an operator of a "big-wheel trencher" on July 24, 1982, at
another jobsite. There, the operator, self-identified as John Redfern, told
Datson that he was, employed by Respondent . But this evidence was of-
fered by the General Counsel with the express reservation that it was
only to explain Datson's subsequent conduct, and not for the truth of
"Redfern's" remarks . A similar disclaimer of hearsay purpose was unmis-
takably made by the General Counsel with respect to Datson's testimony
about what he was "told" by the Union's computer about Redfern's em-
ployment and union membership status. There is no independent evidence
that Respondent employed Redfern in 19,82 (cf. Skinner's admission in the
case of the Candlestick Park operators , supra) Necessarily, because it has
not been established , prima facie, that Respondent employed Redfern in
July 1982, it has not been established , prima facie , that Respondent used a
"big wheel trencher"
15 The evidence in question consists of two types of computer-generat-
ed records , each created at the direction of Hendricks, by now an agent
of the trusts. One set (C P. Exhs . 2-4), recapitulates union membership
data pertaining to the individuals whose names appear on the other
record (C.P. Exh . 1). The latter is a recapitulation, generated on Febru-
ary 2, 1984, of all the persons for whom Respondent had reported
"hours" to the trust for benefit contribution purposes during the periods
April 1979 through July 1982 There are seven names on that recap, of
whom six may be found- (by cross-checking C.P. Exhs 2-4) to have been
members of the Union Only one of them, Kosmach , was reported to
have worked in 1982. -
W. B. SKINNER, INC. 997
The General Counsel accurately distills a bit more
from the record evidence pertaining to the persons who
were shown to be members of the Union.16 Thus, she
notes:
During the period April 1979 through July 1983,
Skinner employed six operating engineers who were
members of the Union . Respondent reported hours
on John Redfern for April and May 1979 and Feb-
ruary, March , April , May, and June 1981; on
Dennis Covey for January 1980 and June, July and
August, 1981 ; on John Kosmach for June, July,
August, September and October , 1981 and June and
July 1982; on Charles Clifton for June, July,
August , September, October, and November, 1981;
on James Brandon for August , 1981 ; and on Vernon
East for September 1981.
This evidence, even when ground this fine , simply
does not answer critical ' questions in the 9(a) majority
analysis prescribed by the Board , specifically : Does Re-
spondent employ a "permanent and stable work force"?
If so , who are they and what is its size normally? See
generally Construction Erectors, supra. And if Respond-
ent's work force is not shown to be "permanent and
stable," the task of establishing 9(a) status becomes even
more difficult , i.e., "only upon a showing that the Union
enjoyed majority support of Respondent's employees on
a site-by-site basis."(Ibid .; emphasis added ,) See also Dee-
Cee Floor Covering, 232 NLRB 421 (1977). Neither the
General Counsel nor the Union makes any, serious effort
to match the data in this record to the necessary legal
tests. 17
Moreover, this kind of "reporting" data is even less re-
liable as a basis for attempting to divine the size and
scope of the unit at whichever point might be appropri-
ate, because the "reporter ," W. B.' Skinner , Inc., is not
elsewhere shown on this record to be reliable in its
(minimal) relations with the Union.18
E. The Applicability of the Poole Foundry Doctrine
There is a question about the impact of the, settlement
agreement that Respondent signed in 1983 on Respond-
ent's subsequent duty to recognize and bargain with the
Union, The question arises in the light of Poole Foundry
& Machine Co., 95 NLRB 34 (1951), enfd. 192 F.2d 740
16 See fn. 15. Note, as well, that for reasons set forth at fn 14 the
Union's exhibits (R. Exhs. 2-4) are the only competent evidence of the
membership status of any of the operators linked on this record to Re-
spondent's operations.
11 The Union's exposition Also suffers from its erroneous inclusion of
Redfern as an employee of Respondent in July 1982 (see fn . 14) and ref-
erences to Norwood's alleged membership (status that may be found only
by ignoring the hearsay character of the evidence, which was adduced
on that point)
is As the General Counsel aptly observed about this very data during
the trial: "[Wle have evidence to show that at certain periods of time the
people that Mr Skinner .. was reporting to the trust fund, were all
members of the Union . But we have no idea . . if, indeed, he was hiring
other people not through the Union and not reporting them ." In fact, we
do know from this record that Skinner was hiring persons other than
those named on his own reports (e g., Norwood) and that he was using
others at times when he was not reporting them (e.g, Clifton and Nor-
wood).
(4th Cir. 1951), cert. denied 342 U.S. 954 (1952). The
"doctrine" of that case is the one expressed by the
Fourth Circuit, as follows, when it enforced the Board's
Order against Poole (192 F.2d at 743-744):
[T]he settlement agreement represents an agreement
by Poole to undertake promptly the remedial action
set out in the agreement rather than to be put to the
trouble and expense of litigation .... .
While not an admission of past liability, a settle-
ment agreement does constitute a basis for, future li-
ability and the parties recognize a status thereby fixed
.... An entire structure or course of future labor
relationships may well be bottomed upon the bind-
ing effect of a status fixed by the terms of a settlement
agreement. If a settlement agreement is to have real
force, it would seem that a reasonable time must be
afforded in which a status fixed by the agreement is
to operate .. .. Thus, it follows that Poole, after
having solemnly agreed to bargain with the Union,
should not be permitted, within three and one-half
months after the agreement, to refuse so to bargain,
even if, as here, the Union clearly did not represent a
majority of the employees. [Emphasis added.]
The Poole doctrine as thus expressed has been adopted,
inter , alia, by the Ninth Circuit. Mammoth of California Y.
NLRB, 673 F.2d 1091, 1093 (1982).
I asked the parties to brief the question whether Poole,
supra, might estop Respondent from denying the Union's
presettlement 9(a) status. The General Counsel gave the
matter this treatment in a footnote to her brief:
The Judge , sua sponte, raised a potential alterna-
tive theory on which General Counsel might have
proceeded. The Judge suggested that under Poole
Foundry, the earlier settlement agreement between
the Union and Respondent might have itself created
a Section 9(a) relationship, even if the Union had
not previously established majority support among
Respondent's employees. While this theory is intrig-
ing [sic], elaboration thereon would serve no useful
purpose in this case, given the fact that the settle-
ment agreement was, in fact, set aside [thus remov-
ing the factual predicate for the theory], and given
the further fact that the alleged violation was nei-
ther plead [sic] nor litigated on such a theory. Ac-
cordingly, Counsel for the General Counsel's brief
will not speculate, on whether the Judge's proffered
theory would independently support the Com-
plaint's alleged violation. However, it should be
noted that Poole Foundry and Machine Co., 95
NLRB 34 (1951) enfd. 192 F.2d 740 (C.A. 4, 1951),
cert. denied 342 U.S. 954 does not appear to stand
for the proposition that the Judge cited. The hold-
ing in Poole Foundry was predicated upon the fact
that the Union, at the time the settlement agreement
was executed, was the Section 9(a) representative of
Respondent's employees. Id. at 35, fn. 4. Whether
Poole Foundry was' meant to include situations
where no such Section 9(a) status was present at the
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
time of the execution of the settlement agreement,
_ 4e.,' whether a settlement agreement containing a
bargaining'-obligation can in' effect establish, as op-
posed to merely reaffirm, a Section 9(a) relation-
ship, is a question that need not be decided herein.
I think that the General Counsel is capable of waiving
prosecutorial rights, and that in these peculiar circum-
stances her statements on brief amount to such a waiver.
This renders moot any further discussion of Poole's po-
tential impact herein. I do not, however, adopt any of
the express or implied assumptions about Poole's reach as
they appear in the General Counsel's footnote analysis.' 9
19 Among other things, I do not believe that the General Counsel has
adequately considered subsequent holdings when she states that the
"holding" in Poole was "predicated on proof of the union's 9(a) status
before the settlement was agreed to. The Fourth Circuit's statements
quoted above that, a, settlement "constitute[s] a basis for future liability"
and amounts to a recogni[tion off a status thereby fixed does not accord
with the General Counsel's analysis. See also, e.g, W. B. Johnston Grain
Co v. NLRB, 365 F.2d 582 (10th Cir 1966) (cited in Mammoth of Calr-
fornra, supra at 1093), wherein the circuit court stated (365 F 2d at 587,
emphasis added): "It,is true-that the settlement agreement was not an ad-
mission that the Company had been guilty of an unfair labor practice by
refusing to bargain, but a party who enters into a valid compromise
agreement . may not thereafter escape its obligation . . . on the ground
that the claim asserted against it, which was settled by the agreement, was
groundless" See also, e g., NLRB Y. Pride Refining, 555 F.2d 453 (5th Cir.
1977), denying' enf of 224 NLRB 1353 (1976), on grounds not material
herein, in which the circuit court stated (555 F 2d at 458)
It is not open to question that ordinarily in an 8(a)(5) settlement
agreement the employer acknowledges the majority status of the union
and agrees to bargain collectively for a reasonable time [Emphasis
added.]
-Based on the foregoing, -I render these ultimate
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 mean-
ing of Section 2(5) of the Act.
3. The record fails to establish 'that the Union was, at
any relevant time , the exclusive collective-bargaining
representative duly designated or selected by a majority
of Respondent's employees in an appropriate unit within
the meaning of Section 9(a) of the Act; accordingly, it
has not been shown that Respondent was under any stat-
utory obligation to recognize ' and bargain collectively
with the Union.
4. In the foregoing circumstances, it did not violate the
Act, as alleged , for Respondent to have refused to fur-
nish certain information to the Union.
[Recommended Order for dismissal omitted from pub-
lication.]
Neither ' is it at all clear that the action of "setting aside" such a settle-
ment affects the General Counsel's right to rely on the majority status
that is "fixed" by the settlement itself. See, e.g., Soule Glass & Glazing
Co., 246 NLRB 792 (1979) There, the Regional Director had set aside
three settlement agreements, two of which were to remedy 8(a)(5) viola-
tions (including one "information" violation, as herein) 246 NLRB at
793. The Board nevertheless adopted without comment the administrative
law judge's settlement (246 NLRB at 802 citing Poole, emphasis added):
"Furthermore, at the time recognition was withdrawn Respondent was
obligated to bargain in good faith with the Union by virtue of the settle-
ment agreements in these cases." And see id at fn 23 (acknowledging as
"proper exercise of his discretion" the Regional Director's "setting aside
the settlement agreements").