349 NLRB No. 114;5/31/07;Madison Industries;21-CA-34759

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Madison Industries, Inc. and District Council of Iron Workers of the State of California and Vicinity. Cases 21–CA–34759 and 21–CA–34927

May 31, 2007

DECISION AND ORDER

By Chairman Battista and Members Liebman
and Schaumber

The issue in this case is whether a bargaining agreement between a construction industry employer and union established an 8(f) or a 9(a) relationship. The judge found, on a stipulated record, that the parties’ relationship was governed by Section 9(a) and that the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from, and refusing to provide relevant information to, the Union following the expiration of the parties’ agreement.[1] As discussed more fully below, we disagree with the judge and find instead that the Respondent lawfully repudiated its relationship with, and lawfully refused to provide requested information to the Union following the expiration of their bargaining agreement. Consequently, the Respondent did not violate Section 8(a)(5) and (1) as alleged, and we shall dismiss the complaint in its entirety.

i. stipulated facts

The Respondent is a construction industry employer that fabricates and installs service station canopies. The Charging Party and its affiliated locals (collectively, the Union) were parties to successive sets of bargaining agreements with the Respondent covering jobsites in California and most of Nevada between 1995 and 2001 (collectively, the Agreement). The most recent Agreement ran from July 1, 1998 until June 30, 2001.

The Agreement’s recognition clause stated that:

The undersigned individual employer hereby voluntarily recognizes the Union as the majority collective bargaining representative of all employees employed by said individual employer performing work covered by this agreement at all jobsites [in the local geographic area] and agrees that the Union has demonstrated that it is the majority representative of such employees in an appropriate collective bargaining unit.

Provisions of the Agreement established an exclusive hiring hall, which set priority for referrals based on length of employment under the Agreement. The Agreement also required that persons employed under the Agreement become a member of the Union “as a condition of employment after the 8th day of employment.” By executing the Agreement, the Respondent also waived “any right that he or it may have to terminate, abrogate, repudiate or cancel this Agreement during its term” or “file or process any petition before the National Labor Relations Board seeking such termination, abrogation, repudiation or cancellation.”

On February 12, 2001,[2] pursuant to the terms of the Agreement, the Respondent notified the Union of its intent to terminate the Agreement upon its expiration and offered to negotiate a new agreement. On May 10, the parties met to negotiate a new contract, but were unable to do so. By its terms, the Agreement expired on June 30. On September 7, the Union requested an up-to-date employee contact list, as well as a list of the Respondent’s current jobs and its current policies governing wages, hours, and working conditions. On September 25, the Respondent repudiated its relationship with the Union and refused to provide the requested information.

In addition to these basic facts, the parties stipulated that the Union was never certified as the exclusive representative of the Respondent’s employees. Additionally, they stipulated that, had the matter gone to a hearing, the General Counsel would not present any evidence that the unit employees executed any authorization cards or other documents by which they designated the Union as their exclusive bargaining representative. Similarly, the parties stipulated that the Respondent’s witnesses would have testified that the Union never offered to provide and never provided to the Respondent any authorization cards or any other evidence of majority status, except to the extent that the terms of the Agreement may by themselves be deemed to constitute such an offer and such a showing. Finally, the parties stipulated that, aside from the Agreement, there was no other evidence indicating that the Respondent had voluntarily recognized the Union as the 9(a) representative of its employees.

ii. judge’s decision

On the basis of these stipulated facts, the judge determined that the recognition clause in the parties’ Agreement established a 9(a) relationship because it “clearly establishes the Union . . . requested recognition as the majority representative of the bargaining unit employees” and “grants the Union . . . status as the majority representative of the unit employees.” The judge also found that the Respondent was barred, under Section 10(b), from challenging the Union’s majority status at the time the Agreement was executed. Accordingly, the judge concluded that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from, and refusing to provide requested information to the Union after the Agreement expired.

iii. parties’ contentions

Despite the parties’ agreement on the facts, they disagree about the nature of their relationship. The Respondent contends that the judge incorrectly found that the parties’ Agreement was governed by Section 9(a) and that the Union was its employees’ exclusive 9(a) representative. Rather, the Respondent contends that the General Counsel failed to rebut the presumption that the parties’ relationship was governed by Section 8(f) and, therefore, it was free to repudiate its relationship with the Union when the Agreement expired. Specifically, the Respondent argues that the judge erred by focusing his analysis solely on the Agreement’s recognition clause. The Respondent implicitly contends that other provisions of the Agreement create ambiguity concerning the nature of the relationship. These include the Respondent’s waiver of its right to file an election petition during the term of the Agreement, the 8-day grace period in the union security clause of the Agreement, and the parties’ exclusive hiring hall arrangement. In light of this ambiguity, the Respondent contends, the judge should have considered the lack of extrinsic evidence of the parties’ intent to form a 9(a) relationship and the lack of evidence of the Union’s majority status when the Agreement was executed.

The General Counsel contends that the Agreement’s recognition clause unequivocally showed that the Union demanded recognition as the employees’ majority representative and that the Respondent voluntarily granted such recognition. Because the recognition clause clearly establishes a 9(a) relationship, the General Counsel argues that the inclusion in the Agreement of provisions typically found in 8(f) agreements does not detract from the Union’s 9(a) status. For these reasons, the General Counsel argues that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from, and refusing to provide information to the Union following the expiration of the Agreement.[3]

iv. legal principles

Section 8(f), subparagraph (1) permits unions and employers in the construction industry to enter into collective-bargaining agreements without the union having to establish that it has the support of a majority of the employees in the covered unit.[4] The provision therefore creates an exception to Section 9(a)’s general rule requiring a showing of majority support of unit employees for the union.[5] Section 8(f) also creates an exception to the general rule that an employer and a union lacking majority support of unit employees commit unfair labor practices by entering into a bargaining relationship with respect to those employees.

The distinction between a union’s representative status under Section 8(f) and under Section 9(a) is significant because an 8(f) relationship may be terminated by either the union or the employer upon the expiration of their collective-bargaining agreement. John Deklewa & Sons, 282 NLRB 1375, 1386–1387 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988). By contrast, a 9(a) relationship (and the associated obligation to bargain) continues after contract expiration, unless and until the union is shown to have lost majority support. Levitz Furniture Co., 333 NLRB 717 (2001).[6] Similarly, an 8(f) contract does not bar a representation petition under Section 9, while a contract made with a 9(a) representative does bar such a petition. Deklewa, supra at 1387.[7]

The Deklewa Board recognized that a Congressional objective in enacting this provision in Section 8(f) was to “lend stability to the construction industry while fully protecting employee free choice principles.” Id. at 1388. In furtherance of this objective, Deklewa adopted a rebuttable presumption that a bargaining relationship in the construction industry was established under Section 8(f), and placed the burden of proving that the relationship instead falls under Section 9(a) on the party making that assertion. Id. at 1385, fn. 41. In so doing, however, Deklewa did not foreclose an 8(f) representative from achieving 9(a) status. Under Deklewa, a construction union with an 8(f) bargaining relationship with an employer could (like a nonconstruction union) achieve 9(a) status either through a Section 9 certification proceeding or “from voluntary recognition accorded . . . by the employer of a stable work force where that recognition is based on a clear showing of majority support among the unit employees, e.g., a valid card majority.” Id. at 1387, fn. 53.

More recently, the Board has held that voluntary recognition under Section 9 may be established solely by the terms of a collective-bargaining agreement that meets minimum requirements. Staunton Fuel & Material, 335 NLRB 717, 719–720 (2001). There, the Board explicitly adopted the standards articulated by the United States Court of Appeals for the Tenth Circuit in NLRB v. Triple C Maintenance, Inc., 219 F.3d 1147 (10th Cir. 2000), enfg. 327 NLRB 42 (1998), and NLRB v. Oklahoma Installation Co., 219 F.3d 1160 (10th Cir. 2000), denying enf. to 325 NLRB 741 (1998). Those standards provide that the parties’ agreement will be independently sufficient to establish a union’s 9(a) representative status, and to overcome the presumption of Section 8(f) status, where the agreement unequivocally indicates that: (1) the union requested recognition as the majority or 9(a) representative of the unit employees; (2) the employer recognized the union as the majority or 9(a) bargaining representative; and (3) the employer’s recognition was based on the union’s having shown, or having offered to show, evidence of its majority support. Staunton Fuel, supra at 719–720 (citing Triple C Maintenance, supra, 219 F.3d at 1155–1156; Oklahoma Installation, supra, 219 F.3d at 1164).[8]

The parties’ failure to specifically refer to Section 9(a) in the recognition clause of their agreement is not necessarily fatal to finding that a 9(a) relationship exists, provided that the rest of the agreement conclusively notifies the parties that a 9(a) relationship is intended. Triple C Maintenance, supra, 219 F.3d at 1155, fn. 3; Oklahoma Installation, supra, 219 F.3d at 1165. The Board confirmed in Nova Plumbing, Inc. that “ignoring the parties’ intent as reflected by a review of the other contract terms and provisions read as a whole, does a disservice to the parties by frustrating their true intent and unnecessarily upsetting the stability of their relationship.” 336 NLRB 633, 635, fn. 4 (2001), enf. denied 330 F.3d 531 (D.C. Cir. 2003).[9]

Thus, in determining whether the presumption of 8(f) status has been rebutted, the Board first considers whether the agreement, examined in its entirety, “conclusively notifies the parties that a 9(a) relationship is intended.” Oklahoma Installation, supra, 219 F.3d at 1165. Where it does so, the presumption of 8(f) status has been rebutted. Staunton Fuel, supra, 335 NLRB at 720. Where the parties’ agreement does not do so, the Board considers any relevant extrinsic evidence bearing on the parties’ intent as to the nature of their relationship. Id., fn. 15.

v. analysis

The judge found that the recognition clause quoted above “clearly establishes” that the Union requested recognition as the majority representative of the unit employees, the Respondent recognized the union as majority representative, and the recognition was based on the Union’s having shown or offered to show evidence of its majority support. For the purpose of deciding this case we shall assume arguendo that the judge’s reading of the recognition clause is correct. We find, however, that the judge erred by limiting his analysis solely to the language of that contractual provision. As discussed above, the Staunton Fuel standard requires an examination of the parties’ entire agreement to determine whether a 9(a) relationship was intended. Nova Plumbing, supra at 635 fn. 4. Having conducted that examination, we find that the General Counsel has not established that the Agreement reflects a Section 9(a) relationship.

Specifically, the Agreement contains a provision waiving the Respondent’s right to file a petition for an election with the Board during the term of the Agreement. If the agreement were a 9(a) agreement, there would be no need for such a provision. That is, an agreement governed by Section 9(a) bars an employer from filing a petition for an election during its term.[10] By contrast, a petition can be processed during the life of a 8(f) contract. Thus, it would appear that the parties contemplated a 8(f) contract, and yet wished to waive the Respondent’s right to file a petition during the term of the Agreement.[11]

Because the parties’ contractual language is ambiguous, we must next consider any extrinsic evidence concerning the parties’ intent. Staunton Fuel, supra at 720, fn. 15. The parties have in essence stipulated that no such evidence bearing on the nature of their relationship exists. The stipulated record indicates that the General Counsel would present no evidence that employees executed authorization cards or other documents designating the Union as their exclusive bargaining representative, that the Respondent’s witnesses would have testified that the Union never offered to provide and never provided to the Respondent any evidence of majority status, and that the Agreement itself was the only evidence of voluntary recognition of the Union as a 9(a) representative. Absent extrinsic evidence to clarify the ambiguity of the Agreement found above, the General Counsel has not rebutted the 8(f) presumption.[12]

As noted above, there is an ambiguity in the contract when read as a whole. Our colleague relies on contract interpretation principles which suggest how that ambiguity is to be resolved. However, assuming arguendo that she is correct and that the contract is more reasonably construed as a Section 9 contract, that does not controvert our view that the contract is not free from ambiguity. And, under extant law, that is what makes the difference here.[13]

Whatever merit such contract interpretation principles might have in a case involving solely contractual issues, they are of little use in resolving the representation issue before us in this case. We are called on to decide whether a majority of the unit employees have “designated or selected” the Union as their exclusive representative for the purpose of collective bargaining. Sec. 9(a). This determination implicates the employees’ Section 7 right of self-organization and self-determination. See International Ladies’ Garment Workers’ Union (Bernard-Altmann Texas Corp.) v. NLRB, supra, 366 U.S. 731. Consistent with these principles and the importance of the statutory rights involved, extant Board law requires proof that an agreement “unequivocally demonstrates that the parties intended to be governed by 9(a)” before 9(a) status may be found on the basis of contractual language. Triple C Maintenance, supra, 219 F.3d at 1155; see also Oklahoma Installation, supra, 219 F.3d at 1165 (requiring proof that agreement “conclusively notifies the parties that a 9(a) relationship is intended”). For the reasons previously stated, the parties’ agreement in this case fails to satisfy that standard. In our view, application of general canons of contract construction cannot supply the conclusive and unequivocal notice that the agreement itself fails to provide.

For all of the foregoing reasons, we find that Section 8(f) governs the parties’ relationship and that the Respondent lawfully repudiated its relationship with, and lawfully refused to provide information to, the Union after the parties’ Agreement expired. Consequently, we reverse the judge’s findings that the Respondent violated Section 8(a)(5) and (1) and dismiss the complaint in its entirety.

ORDER

The complaint is dismissed.

Dated, Washington, D.C. May 31, 2007

Robert J. Battista, Chairman

Peter C. Schaumber, Member

(seal) National Labor Relations Board

Member Liebman, dissenting.

The recognition clause in the contract here clearly states that the Respondent employer “agreed” that the Union “has demonstrated” that it was the unit employees’ “majority representative,” and that the Respondent recognized the Union as the “majority collective-bargaining representative.” This language meets the requirements of Staunton Fuel & Material, 335 NLRB 717 (2001), for establishing a relationship under Section 9(a) of the Act, (as opposed to Section 8(f)), and the Respondent’s repudiation of that relationship thus was unlawful.

Citing the accepted rule that the parties’ “entire agreement” should be reviewed to determine their intent, the majority points to another contract provision in which the Respondent waives its right to file an election petition with the Board during the agreement’s term. In the majority’s view, while this provision would be a significant concession in a 8(f) contract (during which an employer would otherwise have the right to file a petition), there would be “no need” for it in a 9(a) relationship (where a contract in force would bar a petition). From this, the majority finds a suggestion that the parties’ relationship came under Section 8(f) and was accordingly terminable at contract expiration. The resulting ambiguity, in the majority’s view, precludes the required showing by the General Counsel that the parties had a 9(a) relationship.

This approach stretches the entire-agreement rule too far. This is not a dispute over a single term that could arguably be interpreted in two different ways. Where, as here, a contract provision clearly addresses an issue with an unambiguous meaning, there can be no ambiguity unless another provision squarely contradicts it.1 The recognition clause in this contract states categorically that the Union is the “majority representative” and that the Employer recognizes it as such. A separate clause that only waives the Respondent’s right to file a Board petition—which would merely be consistent with the Union’s having Section 8(f) status—simply does not negate or contradict the recognition clause in a manner that creates a genuine ambiguity.2

But, even if the recognition and waiver clauses in this contract are somehow read to be in conflict, the recognition clause would still prevail. Where contract provisions are “irreconcilable” by their literal terms and one of them “contributes most essentially” or is “more important or dominant” or “principal” to the contract, that provision should be applied.3 The recognition clause, at the very outset of this contract, establishes the fundamental relationship between the Union and the Employer. The waiver clause is contained within the contract’s termination paragraph and is clearly not intended to define the parties’ underlying relationship.

Finally, it is an established rule that a contract must be interpreted, to the extent reasonably possible, in a manner that avoids inconsistency and gives meaning to all of its terms.4 The contract’s waiver clause can obviously be applied to the full extent of its terms without altering the clear meaning of the recognition clause, and should therefore be so read.5

Nonetheless, the majority bypasses these contract principles and instead emphasizes the employees’ representational interest in free choice. Protection of that interest is, however, encompassed by the Staunton Fuel requirements discussed fully in the majority opinion.

For all of these reasons, the majority’s rationale for finding this contract “ambiguous” does not withstand scrutiny. Because the contract’s recognition clause meets the requirements of Staunton Fuel, the parties had a Section 9(a) relationship and the respondent employer was required to continue bargaining with the Union after contract expiration.6 The Employer’s refusal to bargain and refusal to provide information relevant to bargaining consequently violated Section 8(a)(5).

Dated, Washington, D.C. May 31, 2007

Wilma B. Liebman, Member

National Labor Relations Board

Stephanie Cahn, for the General Counsel.

Stuart H. Young, Jr. (Hill, Farrer & Burrill), of Los Angeles, California, for the Respondent.

David A. Rosenfeld (Van Bourg, Weinberg, Roger & Rosenfeld), of Oakland, California, for the Union.

DECISION

Statement of the Case

Jay R. Pollack, Administrative Law Judge. This case was submitted to me based on a stipulation of facts dated July 11, 2002. On September 24, 2001, District Council of Iron Workers of the State of California and Vicinity (the Union) filed the charge in Case 21–CA–34759 alleging that Madison Industries, Inc. (Respondent), committed certain violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (29 U.S.C. Section 151 et seq., herein called the Act). On January 11, 2002, the Union filed the charge in Case 21–CA–34927. On February 7, 2002, the Regional Director for Region 21 of the National Labor Relations Board issued a consolidated complaint and notice of hearing against Respondent, alleging that Respondent violated Section 8(a)(1) and (5) of the Act. The complaint was amended on May 16, 2002. Respondent filed timely answers to the complaint denying all wrongdoing.

By stipulation, the parties have waived their right to a hearing before an Administrative Law Judge. All parties have been given the opportunity to file briefs. Upon the stipulated record, including all exhibits thereto, and having considered the briefs filed by the parties, I make the following

Findings of Fact and Conclusions

i. jurisdiction

Respondent is California Corporation with an office and place of business in Los Angeles, California, where it is engaged in the business of fabricating and installing canopies and other tilt-wall construction primarily for service stations. During the 12 months prior to December 31, 2001, Respondent purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of California. The parties stipulated and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

The parties stipulated and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. Local Union Nos. 118, 155, 229, 377, 378, 416, and 433 (herein referred to as the Local Unions) are affiliates of the Union. Each of the Local Unions is itself a labor organization within the meaning of the Act.

ii. the alleged unfair labor practices

A. Background and Issues

For many years, the Union (and the Local Unions) were parties to successive collective-bargaining agreements covering the terms and conditions of employment of employees in an appropriate bargaining unit. The appropriate bargaining unit in the collective-bargaining agreements was:

All employees employed by Respondent performing work covered by the collective-bargaining agreement described below in paragraph 8, at all jobsites located within the State of California and the State of Nevada with the exception of the Counties of Elko, Eureka and white Pine located in the state of Nevada; excluding any employees performing electrical work, including installation of lights and signs and installation of graphics on buildings and canopies, and all other employees, office clerical employees, professional employees, guards and supervisors as defined in the Act.

The most recent agreement, herein called the Independent Agreement was entered into on or about July 1, 1998. The Iron Worker Employers State of California and a portion of Nevada and District Council of Iron Workers of the State of California and Vicinity Master Agreement, herein called the Master Agreement, was effective by its terms from July 1, 1998, through June 30, 2001, and was incorporated by reference as part of the Independent Agreement. The Independent Agreement also incorporated by reference a Memorandum of Understanding dated June 30, 1995, herein called the MOU. A letter dated August 3, 1998, modified the terms of the MOU.

The Independent Agreement, as well as the Master Agreement, continued in effect for the period from July 1, 1998, through June 30, 2001. The parties agree that throughout that period, Respondent and the Union “each observed these two agreements.”

The complaint alleges that Respondent violated Section 8(a) (1) and (5) of the Act by failing and refusing to furnish information to the Union in September 2001. On or about September 25, 2001, Respondent withdrew its recognition of the Union as the exclusive collective-bargaining representative of the bargaining unit employees. The parties stipulated, “there is a dispute between the parties as to whether Respondent’s relationship with the Union was based on Section (f) or Section 9(a) of the Act.”

B. The Facts

Pursuant to the terms of the Independent Agreement, on February 12, 2001, Respondent notified the Union of its intent to terminate the Independent Agreement effective June 30, 2001. Respondent also offered to meet and confer with the Union for the purpose of negotiating a new contract pursuant to the terms of Section 8(d) of the Act. On May 10, 2001. Respondent and the Union met to negotiate a new collective-bargaining agreement. However, the parties did not reach a new agreement.

The parties stipulated that the bargaining unit employees employed by Respondent and covered by the terms of the Master Agreement and Independent Agreement, never participated in an NLRB conducted election in which the Union or the Local Unions were certified as their exclusive collective-bargaining representative. The Union and the General Counsel presented no evidence that the unit employees executed any authorization cards or other documents by which they designated the Union as their exclusive bargaining representative with Respondent. The Union never offered to provide and never provided to Respondent authorization cards or any other evidence of majority status, except to the extent that the terms of the Independent Agreement provide:

“It is hereby mutually understood and agreed by and between the undersigned individual employer and the District Council of Iron Workers of the State of California and Vicinity, for and on behalf of its affiliated California Field Iron Workers Local Unions, that for and in consideration . . . .”

The undersigned individual employer hereby voluntarily recognizes the Union as the majority collective bargaining representative of all employees employed by said individual employer performing work covered by this agreement at all jobsites located within the State of California and the State of Nevada with the exception of the Counties of Elko, Eureka and White Pine located in the State of Nevada and agrees that the Union has demonstrated that it is the majority representative of such employees in an appropriate collective bargaining unit.

The parties stipulated that unless it is found that the language of the Independent Agreement shows that Respondent voluntarily recognized the Union and the Local Unions as the 9(a) representative, there is no other evidence that Respondent granted voluntary recognition to the Union.

By letter dated September 7, 2001, the Union requested that Respondent provide information relevant to negotiations for a new collective-bargaining agreement. By letter dated September 25, 2001, Respondent repudiated its bargaining relationship with the Union, and, based on that repudiation, declined to furnish the Union information relevant to negotiations for a bargaining agreement.

C. Contentions of the Parties

General Counsel and the Union contend that the Independent Agreement unequivocally establishes that the Union requested and was granted recognition as the majority representative of the unit employees under Section 9(a) of the Act. Respondent contends that the language of the Independent Agreement is insufficient to overcome the presumption that recognition of the Union was pursuant to Section 8(f) of the Act.

The General Counsel and the Union argue that if it is found that the Union was the 9(a) representative of the unit employees, the Respondent violated Section 8(a)(5) of the Act by not supplying the relevant information to the Union. Respondent argued that there was no 9(a) status and that, therefore, there could be no violation of Section 8(a)(5). Thus, Respondent did not address the merits of the information request.

D. Analysis

1. The withdrawal of recognition

As a general rule the Board presumes that construction industry bargaining relationships are governed by Section 8(f) of the Act. Since Respondent is an employer engaged in the construction industry, the Board presumes that Respondent and the Union intended their relationship to be governed by Section 8(f), rather than Section 9(a). The burden of proving the existence of a 9(a) relationship is on the party asserting that such a relationship exists. John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB, 843 F2d 770 (3d Cir. 1988), cert. denied 488 U.S. 889 (1988); H.Y. Floors, 331 NLRB 304, 305 (2000).

A union proves 9(a) status by unequivocally showing that: (1) the union requested recognition as the majority or 9(a) representative of the unit employees; (2) the employer recognized the union as the majority or 9(a) representative; and (3) the employer’s recognition was based on the union’s having shown, or having offered to show evidence of its majority support. These requirements can be satisfied through a written agreement between the parties, such as when parties have memorialized their relationship in a collective-bargaining agreement. Central Illinois Construction, 335 NLRB 717, 720 (2001). This is true even if the union never presented the employer with evidence of its majority status but an unequivocal demand is contained within the language of the agreement. H. Y. Floors & Gameline Painting, 331 NLRB 304 (2000); Oklahoma Installation Co., 325 NLRB 741 (1998) enf. den. 219 F. 3d 1160 (10th Cir. 2000).

I find that the recognition language of the Independent Agreement clearly establishes the Union, for and on behalf of the Local Unions, requested recognition as the majority representative of the bargaining unit employees. The language further grants the Union, for and on behalf of the Local Unions, status as the majority representative of the unit employees. The issue is whether the contract language satisfies the requirement of Central Illinois Construction, that the Respondent’s recognition was based on the Union having shown, or having offered to show, evidence of its majority support.

As stated above the Independent Agreement states Respondent “agrees that the Union has demonstrated that it is the majority representative of such employees in an appropriate collective bargaining unit.” The stipulation of facts however, states that the Union never offered to provide and never provided to Respondent authorization cards or any other evidence of majority status.

In Nova Plumbing, Inc., 336 NLRB 633 (2001) the Board found the following language sufficient to establish majority representative status under Section 9(a):

“Based upon evidence presented to the Contractor by the Union, which evidence demonstrates that the Union represents an uncoerced majority of the employees of the Contractor... the Contractor hereby recognizes the Unions who are signatory here as the sole and exclusive collective bargaining representative of all employees . . . .”

The Board further held in Nova Plumbing that once it was established that the respondent-employer had recognized the union as a 9(a) representative, the Union enjoyed a presumption of majority status. When the collective-bargaining agreement expires the presumption of majority status becomes a rebuttable presumption. Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 786 (1996). To lawfully withdraw recognition a respondent-employer must establish a good-faith uncertainty of the Union’s majority status. Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998). In the instant case, Respondent does not offer any evidence of a good-faith uncertainty in September 2001, when it withdrew recognition from the Union. Rather Respondent seeks to deny the assertion of majority status it entered into in July 1998.

In Central Illinois Construction, supra, at fn. 10, fn. 14, the Board held that an employer voluntarily granting 9(a) status may challenge the union’s majority status but only within the 6-month limitation period set forth in Section 10(b) of the Act. The Board reached the same conclusion in a representation case context in Casale Industries, 311 NLRB 951, 952 (1993). Congress enacted Section 10(b) of the Act to protect continuing collective-bargaining relationships from attack. The 6-month bar of Section 10(b) is designed to strengthen and defend the “stability of bargaining relationships.” Bryan Mfg. Co. v. NLRB, 363 U.S. 41, 425 (1960). The time limitation reflects the balance drawn by Congress, “between the interest of employees in redressing grievances and vindicating their statutory rights” and the “interest in industrial peace which is the overall purpose of the Act to secure.” Id at 428. Thus, I find that Respondent could not challenge (in 2001) its written agreement (in 1988) that the Union had demonstrated majority status.

2. The refusal to furnish information

By letter dated September 7, 2001, the Local Unions requested that Respondent provide an up-to-date list of employees including their home addresses, phone numbers, rates of pay, and classifications as well as a list of Respondent’s jobs and current policies governing wages, hours, and working conditions.

Section 8(a)(5) of the Act makes it an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees, subject to the bargaining unit provisions of Section 9(a). The duty to bargain in good faith requires an employer to furnish information requested and needed by the employees’ bargaining representative for the proper performance of its duties to represent unit employees of that employer. NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967). A union’s request for information regarding the terms and conditions of employment of the employees employed within the bargaining unit represented by the union, is “presumptively relevant” to the Union’s proper performance of its collective-bargaining duties, Samaritan Medical Center, 319 NLRB 392, 397 (1995), because such information is at the “core of the employee-employer relationship,” Graphics Communications Local 13 v. NLRB, 598 F.2d 267, 271 fn. 5 (D.C. Cir. 1959), thus it is relevant by its “very nature.” Emeryville Research Center v. NLRB, 441 F. 2d 880, 887 (9th Cir. 1971).

Therefore, an employer’s statutory obligation to provide information presupposes that the information is relevant and necessary to a union’s bargaining obligation vis-a-vis its representation of unit employees of that employer. White-Westinghouse Corp., 259 NLRB 220 fn. 1 (1981). Whether the requested information is relevant or needed to invoke a statutory obligation to provide it is determined on a case-by-case basis. Id.

In this case, all of the information in question, an up-to-date list of employees including their home addresses, phone numbers, rates of pay, and classifications as well as a list of Respondent’s jobs and current policies governing wages, hours, and working conditions, is presumptively relevant. Watkins Contracting, Inc. 335 NLRB 222 (2001). As such, no showing of particular need is necessary

Conclusions of Law

1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

2. The Union and the Local Unions are labor organizations within the meaning of Section 2(5) of the Act.

3. By withdrawing recognition of the Union as the exclusive bargaining representative of the bargaining unit employees, Respondent violated Section 8(a)(1) and (5) of the Act.

4. Respondent has violated Section 8(a)(1) and (5) of the Act by failing to provide the Union with relevant information consisting of an up-to-date list of employees including their home addresses, phone numbers, rates of pay, and classifications as well as a list of Respondent’s jobs and current policies governing wages, hours, and working conditions

5. The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.

The Remedy

Having found that Respondent engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act.

It is recommended that Respondent be ordered to recognize and bargain with the Union as the majority collective-bargaining representative of all employees in the appropriate bargaining unit.

I shall recommend that Respondent provide the Union with the requested information consisting of an up-to-date list of employees including their home addresses, phone numbers, rates of pay, and classifications as well as a list of Respondent’s jobs and current policies governing wages, hours, and working conditions.

Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended.1

ORDER

The Respondent, Madison Industries, Inc., its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Refusing to bargain with District Council of Iron Workers of the State of California and Vicinity as the exclusive collective bargaining representative under Section 9(a) of the Act for the following appropriate unit of employees:

All employees employed by Madison Industries, Inc., performing work covered by its 1998-2001 Independent Agreement, or any subsequent agreement, at all jobsites located within the State of California and the State of Nevada with the exception of the Counties of Elko, Eureka and White Pine located in the State of Nevada. Unilaterally changing its health plan benefits and employee contributions for health plan coverage insofar as such changes are applicable to employees in the above unit.

(b) Refusing to bargain with, the Union by refusing to provide the Union with requested information with including an up-to-date list of employees including their home addresses, phone numbers, rates of pay, and classifications as well as a list of Respondent’s jobs and current policies governing wages, hours, and working conditions

(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Within 14 days from a request, bargain with the Union as the exclusive representative of Respondent’s employees in the agreed upon appropriate bargaining unit.

(b) Within 14 days of this order, provide the Union with the requested information including an up-to-date list of employees including their home addresses, phone numbers, rates of pay, and classifications as well as a list of Respondent’s jobs and current policies governing wages, hours, and working conditions.

(c) Within 14 days after service by the Region, post at its, California, facilities copies of the attached Notice marked “Appendix”2 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by Respondent’s authorized representative, shall be posted for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure the notices are not altered, defaced or covered by other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facilities involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the attached notice to all current employees and former employees employed by the Respondent at any time since September 7, 2001.

d. Within 21 days after service by the Region, file with the Regional Director, a sworn certification of a responsible official on a form provided by the Region attesting to the steps Respondent has taken to comply.

Dated, San Francisco, California, September 26, 2002.

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 Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities

We will not refuse to bargain with District Council of Iron Workers of the State of California and as the exclusive collective-bargaining representative under Section 9(a) of the Act for the following appropriate unit of employees:

We will not refuse to bargain with, the Union by refusing to provide the Union with requested relevant information including an up-to-date list of employees including their home addresses, phone numbers, rates of pay, and classifications as well as a list of our jobs and current policies governing wages, hours, and working conditions.

We will not in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act.

We will recognize and bargain with the Union as the exclusive collective-bargaining representative under Section 9(a) of the Act for the employees in the bargaining unit.

We will provide the Union with requested relevant information including an up-to-date list of employees including their home addresses, phone numbers, rates of pay, and classifications as well as a list of our jobs and current policies governing wages, hours, and working conditions.

Madison Industries Inc.

[1] On September 26, 2002, Administrative Law Judge Jay R. Pollack issued the attached decision. The Respondent filed exceptions and a supporting brief to which the General Counsel filed an answering brief. The General Counsel filed limited cross-exceptions and a supporting brief, to which the Respondent and the Union separately filed answering briefs. The General Counsel filed a reply brief to these answering briefs. The Union also separately filed a limited cross-exception.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the stipulated record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.

[2] All dates refer to 2001 unless otherwise indicated.

[3] The Union’s answering brief indicates that it joins in the position of the General Counsel.

The General Counsel and Union separately filed limited cross-exceptions to the judge’s recommended remedy for the violations found. Because we find, for the reasons discussed below, that the Respondent did not violate Sec. 8(a)(5) and (1), we need not address these cross-exceptions.

[4] Sec. 8(f) provides, in pertinent part: “It shall not be an unfair labor practice under subsections (a) and (b) of this section for an employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organization of which building and construction employees are members . . . because (1) the majority status of such labor organization has not been established under the provisions of [Sec.] 9 prior to the making of such agreement.”

[5] Sec. 9(a) states, in pertinent part: “Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment . . . .”

[6] Chairman Battista and Member Schaumber did not participate in Levitz Furniture Co. and express no opinion on whether it was correctly decided.

[7] Deklewa discarded the Board’s former “conversion doctrine,” under which an 8(f) relationship could be converted to a 9(a) relationship without an election, on the basis of any of several criteria that did not necessarily reflect employee majority support for the union. Since the conversion doctrine had permitted employees to be “locked in” to 9(a) representation beyond the term of one contract by a union lacking majority support, abandoning the doctrine served the interest of protecting employees’ right to determine their own representation status. Id. at 1386–1387 and fn. 47.

[8] Chairman Battista and Member Schaumber did not participate in Staunton Fuel and no party has sought its reversal. Accordingly, they apply that precedent but express no opinion on whether that case was correctly decided.

[9] In Nova Plumbing, the Board applied the Staunton Fuel criteria and found that the parties’ relationship was governed by Sec. 9(a). The Board found that the language of the parties’ agreement clearly and unambiguously set forth the parties’ intent to create a 9(a) relationship.

In denying enforcement to the Board’s decision, however, the United States Court of Appeals for the District of Columbia Circuit called the viability of Staunton Fuel into question. The court stated that the proposition that contract language alone can establish a 9(a) relationship completely fails to account for employee rights under Sec. 7 and “runs roughshod” over the principles established in International Ladies’ Garment Workers’ Union (Bernard-Altmann Texas Corp.) v. NLRB, 366 U.S. 731, 737 (1961) (holding that an agreement recognizing the union as majority representative in the absence of an actual showing of majority support for the union “must fail in its entirety”). 330 F.3d at 536–537. The court thus held that contract language and intent to form a 9(a) relationship, standing alone, “cannot be dispositive” at least where, as in that case, “the record contains strong indications that the parties had only a 8(f) relationship.” Id. at 537.

Chairman Battista and Member Schaumber did not participate in Nova Plumbing and express no opinion on whether it was correctly decided.

[10] Montgomery Ward & Co., 137 NLRB 346, 348–349 (1962).

[11] The dissent correctly notes that even under a 9(a) relationship, a petition may be filed during a 60-90 day period before contract expiration, and that the waiver provision would close that period. The waiver provision would, however, be of far greater significance in an 8(f) setting, where it would bar an employer petition for the entire contract term. Consistent with our understanding of the waiver provision, the General Counsel has conceded that “there are provisions in the contract which set out the parties‘ relationships if and when the contract is an 8(f) contract.” On balance, then, the waiver provision does suggest an 8(f) relationship.

Member Schaumber is of the view that the Agreement’s restrictive hiring hall provision and 8-day grace period in the union security clause, while not dispositive of the nature of the parties’ relationship, also suggest that the parties contemplated an 8(f) relationship.

[12] In this regard, this case is unlike M & M Backhoe Services, Inc., supra, 345 NLRB No. 29, slip op. at 1, where the Board found that the parties’ recognition agreement created a 9(a) relationship. There, actual evidence of the union’s majority support offered to the employer at the time of contract execution confirmed the Board’s finding that Sec. 9(a) controlled the parties’ relationship.

[13] We do not pass on whether unambiguous language alone is sufficient to establish Sec. 9 status. See M & M Backhoe Service v. NLRB, 469 F.3d 1047, 1050 (D.C. Cir. 2006), enfg. 345 NLRB No. 29, slip op. at 1 (2005).

1 Similarly, specific terms bearing on a particular subject take precedence over general terms. E.g., IBEW Local 48 (Oregon-Columbia Chapter of NECA), 342 NLRB No. 10, slip op. at 7 (2004); UBC Local 537 (E.I. DuPont De Nemours), 303 NLRB 419 fn. 2 (1991); Newspaper and Mail Deliverers (Macromedia Publishing), 281 NLRB 588, 591 fn.15 (1986), aff’d 804 F.2d 1248 (3d Cir. 1986) (table). As shown below, it takes a considerable stretch to read the waiver clause here as even a “general” indication that the Union’s representative status fell under Sec. 8(f). However, even if the waiver is read in that manner, the recognition clause, which refers specifically to the Union’s “majority representative” status, prevails and establishes Sec. 9(a) status.

2 For that matter, the waiver at issue is consistent with a 9(a) bar as well as with an 8(f) relationship: it precludes the Employer from filing a petition with the Board. Moreover, the majority’s premise that the waiver at issue here was consistent only with an 8(f) relationship is incorrect. First, the waiver is consistent with a 9(a) bar: it precludes the Employer from filing a petition with the Board. Moreover, although the existence of a 9(a) relationship bars the filing of a Board petition for most of the contract’s term, a petition may be filed during the 60-to-90-day period before contract expiration. River Forest Golden Bear, 218 NLRB 1074 (1975). An employer’s waiver of its right to file a petition during that period would therefore be of value to the union, even in a 9(a) relationship. In short, the waiver clause in this contract was consistent with either a 9(a) or an 8(f) relationship and therefore creates no ambiguity that would cast doubt on the explicit terms in the recognition clause.

3 Foreign Trade Export Packing Co., 112 NLRB 1246, 1258–1259 (1955); Williston, supra, Sec. 32:15 at 507, 509.

4 Hamm, Theo, Brewing Co., 115 NLRB 1157, 1163 (1956); Supreme Sunrise Food Exchange, 105 NLRB 918, 920 (1953).

5 The contract also required new hires to join the Union after the 7th day of employment and established an exclusive hiring hall. In Member Schaumber’s view, these two provisions also “suggest” an 8(f) pre-hire rather than a 9(a) majority-representative relationship. However, although such contract provisions are specifically authorized in, respectively, Secs. 8(f)(2) and (4), those statutory authorizations, by their terms, clearly apply to any collective-bargaining agreement in the construction industry, regardless of whether an agreement establishes a pre-hire relationship under Sec. 8(f)(1) or a majority-representative relationship under Sec. 9(a). These two provisions therefore cast no light on the nature of the parties’ relationship.

6 As noted by the majority, the U.S. Court of Appeals for the District Court Circuit, in refusing to enforce the Board’s decision in Nova Plumbing, supra, did not find the test adopted in Staunton Fuel to be adequate for all disputes where a 9(a) relationship is claimed solely on the basis of contract language. Nova Plumbing v. NLRB, supra, 330 F.3d at 536–538. However, as the Board has already observed, see M&M Backhoe Service, 345 NLRB No. 29, slip op. at 1 (2005), enfd. 469 F.3d 1047, 1050 (D.C. Cir. 2006), the Court in Nova Plumbing was addressing a situation where there was affirmative, uncontroverted evidence that, in direct contradiction of the terms of the recognition clause, the union had not had the unit’s majority support when the contract was executed; this evidence was clearly critical to the Court’s holding. 330 F.3d at 536–538. In this case, by contrast, the stipulated record shows only that the Union never showed or offered to show that it had majority support. Because the Respondent could have raised a timely challenge but chose not to do so, and because there is no affirmative evidence that the Union lacked majority support, a finding that the parties had a 9(a) relationship would not conflict with the Court’s decision in Nova Plumbing.

1 All motions inconsistent with this recommended order are hereby denied. In the event no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.