A & M Trucking

National Labor Relations Board - Board Decisions

Aug 31, 1994

314 N.L.R.B. 991 (N.L.R.B. 1994)

991
314 NLRB No. 163
A & M TRUCKING
1 The Charging Party, Local 3029, United Mine Workers of Amer-
ica, is a constituent part of Charging Party District 17, United Mine
Workers of America, which in turn is a constituent part of the
United Mine Workers of America.
2 The judge rejected the General Counsel’s contention that the
memorandum incorporated the bargaining unit description set forth
in the 1988 National Bituminous Coal Wage Agreement, and no ex-
ceptions were filed to this finding.
3 Unless otherwise indicated, all dates are in 1992.
4 The information requested by the March 12 letter is divided into
8 documentary requests and 29 interrogatories.
A & M Trucking, Inc. and Local Union No. 3029,
United Mine Workers of America, AFL–CIO
and District 17, United Mine Workers of
America, AFL–CIO. Cases 9–CA–29744, 9–CA–
29745–2, and 9–CA–30323
August 31, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On January 6, 1994, Administrative Law Judge
James L. Rose issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found that the Respondent did not violate
Section 8(a)(5) and (1) of the Act by refusing to fur-
nish certain information requested by District 17 and
by refusing to discuss grievances with Ronald Nibert,
a designated representative of District 17 and Local
3029.1 The judge concluded that the memorandum of
understanding between the United Mine Workers of
America and the Respondent extended only to union
members and not all employees and did not entitle ei-
ther the District or the Local to the rights normally at-
tendant where a labor organization has been designated
by a majority of employees in an appropriate unit and
has been so recognized by their employer. The judge
therefore found that the Respondent did not violate the
Act when it refused to furnish the information or deal
with Nibert and accordingly dismissed the complaint.
For the reasons set forth below, we find, contrary to
the judge, that the memorandum of understanding is
not a members-only contract on its face or in its appli-
cation, and that the Respondent violated Section
8(a)(5) and (1) by refusing to furnish District 17 with
the requested information and by refusing to deal with
Nibert.
On February 4, 1991, the Respondent and Mark
Marsh, an International representative for the United
Mine Workers of America, executed the memorandum
of understanding to settle a strike by the Respondent’s
employees over the use of subcontractors to haul coal.
Although characterized by the judge and the arbitrator
as ‘‘short and crude,’’ the first page of the memo-
randum provides a wage rate, defines seniority and
recognizes seniority rights, and specifies how em-
ployee problems will be handled. Item 4 of the memo-
randum provides that the Respondent ‘‘will recognize
the settlement of disputes as defined in Article XXIII
of the National Bituminous Coal Wage Agreement of
1988.’’ The memorandum has a fixed duration and
contains provisions relating to certain withholdings
from wages, reopening the agreement, and manage-
ment rights. The second page is a wage addendum.
The third page, a seniority list of 35 employees, was
drawn up and attached approximately 2 to 3 weeks
after the execution of the document. The memorandum
contains no express recognition clause or bargaining
unit description and does not include such a clause
through reference to any other collective-bargaining
agreement or document.2 The terms ‘‘employees’’ and
‘‘truckdrivers’’ are used interchangeably in the docu-
ment and, in defining a new employee, the document
refers to ‘‘any truckdriver.’’
Following the signing of the memorandum, Ronald
Nibert was elected one of three committeemen to han-
dle employee grievances. According to Nibert, the
committeemen informed Tony Mayes, the Respond-
ent’s owner and president, of their election. Nibert and
the other committeemen handled approximately seven
grievances and safety complaints before the arbitration
hearing. In each instance, they dealt with Mayes.
On May 9, 1991, Local 3029 filed a grievance con-
cerning the Respondent’s use of subcontractors to haul
coal. Prior to the May 6, 1992,3 arbitration hearing on
the grievance, by letter dated March 12, District 17 re-
quested information from the Respondent concerning
the use of subcontractors.4 The Respondent did not re-
spond to the information request. At the end of
Nibert’s shift on May 7, Mayes told Nibert that he
would no longer discuss union business with Nibert
because Nibert had lied at the arbitration hearing the
day before. Nibert replied that he was not a liar and
that Mayes would have to deal with him regarding the
Union because he was an elected committeeman.
By a decision dated June 5, the arbitrator found that
the Respondent had violated the memorandum by sub-
contracting certain hauling of coal and provided an
award based on the number of days that contractors
were used. The arbitrator also ordered the parties to
jointly examine the Respondent’s records to determine
the amount of the award. By letters dated June 26, July
3 and 6, District 17 repeated its request for the infor-
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 In the first line of the memorandum, the parties scratched out the
word ‘‘employees’’ and substituted ‘‘truckdrivers.’’
6 It is undisputed that the Respondent employs mechanics as well
as truckdrivers.
7 As the judge noted, the testimony could be interpreted as mean-
ing that the Respondent had 45 to 60 employees, 35 of whom were
union members or as meaning that of the Respondent’s work force
of 45 to 60 employees, 35 were truckdrivers.
mation sought in the March 12 letter and for informa-
tion related to the arbitrator’s award. The Respondent
did not provide the requested information.
Near the end of June, Nibert approached Mayes
about the transporting of some employees to the work-
site in an open truck. Nibert was concerned about safe-
ty and whether the employees were being paid. Mayes
told Nibert he would talk to one of the other com-
mitteemen, but not to Nibert.
By letter dated December 10, District 17, seeking
further information regarding the Respondent’s use of
subcontractors, requested information regarding the Re-
spondent’s relationship with E & T Trucking, an al-
leged subcontractor. The Respondent did not respond
to the request. By letter dated December 18, District
17 reiterated its request for the information concerning
E & T and requested additional information concerning
the Respondent’s coal hauling contract with its prime
contractor. Again, the Respondent failed to respond to
the information request. By letter dated January 5,
1993, District 17 reminded the Respondent of the out-
standing information requests and offered to clarify
any of the requests. According to Robert Phalen, presi-
dent of District 17, the Respondent has failed to re-
spond to any of District 17’s requests for information.
In concluding that the memorandum established rec-
ognition in a members-only unit, the judge relied on
the memorandum’s lack of a recognition clause and
unit description, and on Nibert’s testimony concerning
the question of how many employees the Respondent
had at the time the memorandum was executed. In this
regard, Nibert testified that the Respondent had ‘‘45 to
60. At the time we—at the time that we went—were
voted in Union, there was approximately 35.’’ The
judge concluded that this testimony was consistent
with the seniority list attached to the memorandum that
contained 39 names. The judge also cited the testi-
mony of Robert Bess, a field representative for District
17, and Mayes as further support for this conclusion.
Bess testified that District 17 represented the ‘‘classi-
fied employees’’ working for the Respondent. Bess
further testified that he used the term ‘‘classified em-
ployees’’ to refer to ‘‘the Union employees or the em-
ployees who belong to the United Mine Workers and
also work for’’ the Respondent. Mayes testified that
the Respondent also employs mechanics, that the
memorandum only covered the truckdrivers, and that
the Respondent filed a monthly statement with District
17 of dues withheld for union employees. Contrary to
the judge, we find that there is no evidence, either on
the face of the document or in its application, that the
memorandum covered only union members.
The memorandum, although brief, is a valid agree-
ment with a fixed duration, reduced to writing, and ex-
ecuted by the parties. Further, the memorandum con-
tains sufficient terms and conditions of employment to
stabilize the bargaining relationship between the par-
ties. Central Plumbing Co., 198 NLRB 925 fn. 1
(1972); see also Appalachian Shale Products Co., 121
NLRB 1160 (1958). Although the document lacks an
explicit recognition clause or unit description, the
memorandum refers first to ‘‘truckdrivers’’5 and subse-
quently to ‘‘employees.’’ The memorandum further de-
fines a ‘‘new employee’’ as ‘‘any truckdriver’’ paid by
the Respondent. This language indicates that it applies
only to the Respondent’s truckdrivers,6 but nothing on
its face suggests that it applies only to those truck-
drivers who were union members. The judge appears
to infer members-only application from Nibert’s testi-
mony as to the number of Respondent employees in
February 1991. Contrary to the judge, we find that
Nibert’s statement is ambiguous and open to several
interpretations rather than constituting evidence of a
members-only recognition.7
We further find that neither the testimony of Bess
nor Mayes suggests the existence of a members-only
contract. Bess’ testimony that District 17 represented
the ‘‘classified employees’’ working for the Respond-
ent is at best ambiguous. Concededly, Bess testified
that he used the phrase ‘‘classified employees’’ to refer
to ‘‘the Union employees or the employees who be-
long to the United Mine Workers . . . .’’ However,
we do not believe that these remarks, standing alone,
establish a ‘‘members only’’ contract. In this regard,
we note that Bess was simply indicating his subjective
understanding of the phrase. In addition, we note that
the other evidence discussed herein is objective and
that it supports the view that a ‘‘members only’’ rela-
tionship was not contemplated. Mayes’ testimony
merely indicates that the memorandum was intended to
apply only to the Respondent’s truckdrivers and, con-
sidered with the language of the memorandum, sup-
ports the conclusion that the Unions represented all the
Respondent’s truckdrivers.
Further, there is nothing in the record to suggest that
the memorandum has been applied on a members-only
basis. To the contrary, the record establishes that the
Respondent has applied the memorandum to all of its
truckdrivers, deducting dues from their paychecks, re-
mitting those dues to District 17, dealing with the
Unions’ representatives over grievances, meeting with
District 17 to discuss contract negotiations, and pro-
ceeding to arbitration over the grievance concerning
subcontracting. Cf. Ron Wiscombe Painting & Sand-
blasting Co., 194 NLRB 907 (1972). Further, nothing
993A & M TRUCKING
8 The Respondent does not dispute that the requested information
was necessary and relevant to District 17’s and Local 3029’s per-
formance of its duties as the exclusive bargaining representative of
the employees.
9 Chairman Gould finds it unnecessary to pass on the judge’s find-
ing that the Respondent was not obligated under Sec. 8(a)(5) to fur-
nish information to or deal with District 17 and Local 3029 pursuant
to a members-only contract.
10 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
in District 17’s or Local 3029’s representational activi-
ties with either the Respondent or the truckdrivers in
any way suggests that its representation was limited
only to members. Under these circumstances, we find
that the representation of the truckdrivers by District
17 and Local 3029 was not limited to those who had
joined the United Mine Workers. Accordingly, we find
that the Respondent had an enforceable contractual re-
lationship with District 17 and Local 3029 and that the
Respondent’s failure to furnish the requested informa-
tion8 to District 17 and to discuss grievances with the
designated representative of District 17 and Local 3029
violated Section 8(a)(5) and (1) of the Act.9
CONCLUSIONS OF LAW
By failing to furnish District 17 with the information
requested by letters dated March 12, December 10 and
18, 1992, and by refusing to discuss grievances with
a representative designated by District 17 and Local
3029, the Respondent has violated Section 8(a)(5) and
(1) of the Act.
REMEDY
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act, we shall order it to cease
and desist and take certain affirmative action that will
effectuate the policies of the Act. We shall order the
Respondent to cease and desist from failing and refus-
ing to furnish District 17 with information requested
by letters to the Respondent dated March 12, Decem-
ber 10 and 18, 1992, and from failing and refusing to
meet with Nibert for the purpose of processing griev-
ances. We shall further order that the Respondent, on
request, furnish District 17 with the information re-
quested in the March 12, December 10 and 18, 1992
letters, not previously furnished.
ORDER
The National Labor Relations Board orders that the
Respondent, A & M Trucking, Inc., Mt. Carbon, West
Virginia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with
the Local 3029, United Mine Workers of America,
AFL–CIO, and District 17, United Mine Workers of
America, AFL–CIO, as the exclusive bargaining rep-
resentative of its truckdrivers, by refusing to furnish
District 17 with the information requested by letters to
the Respondent dated March 12, December 10 and 18,
1992, which is necessary and relevant to its perform-
ance of its function as the exclusive bargaining rep-
resentative of the employees.
(b) Failing and refusing to meet for the purposes of
processing employee grievances with Ronald Nibert,
an individual designated as the agent of District 17 and
Local 3029, for purposes of collective bargaining.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, furnish to District 17 all the informa-
tion requested by letters dated March 12, December 10
and 18, 1992, not previously furnished.
(b) On request, meet for the purpose of processing
employee grievances with Ronald Nibert, an individual
designated as the agent of District 17 and Local 3029,
for the purposes of collective bargaining.
(c) Post at its facility in Mt. Carbon, West Virginia,
copies of the attached notice marked ‘‘Appendix.’’10
Copies of the notice, on forms provided by the Re-
gional Director for Region 9, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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 al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail and refuse to bargain collectively
with Local Union 3029, United Mine Workers of
America, AFL–CIO and District 17, United Mine
Workers of America, AFL–CIO, as the exclusive bar-
gaining representative of our truckdrivers, by refusing
to furnish District 17 with the information requested
by letters dated March 12, December 10 and 18, 1992.
WE WILL NOT fail and refuse to meet for the pur-
poses of processing employee grievances with Ronald
Nibert, an individual designated as the agent of District
17 and Local 3029, for purposes of collective bar-
gaining.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, furnish to District 17 all the
information requested by letters dated March 12, De-
cember 10 and 18, 1992, not previously furnished,
which is relevant and necessary to District 17’s role as
the exclusive bargaining representative of our truck-
drivers.
WE WILL, on request, meet for the purposes of proc-
essing employee grievances with Ronald Nibert, an in-
dividual designated as the agent of District 17 and
Local 3029, for the purposes of collective bargaining.
A & M TRUCKING, INC.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. These cases
were tried before me on August 25, 1993, at Charleston,
West Virginia, upon the General Counsel’s third consolidated
complaint which alleged that the Respondent refused to fur-
nish certain requested information and refused to discuss
grievances with an individual duly designated as a represent-
ative of the Charging Party, both in violation of Section
8(a)(5) of the National Labor Relations Act.
The Respondent generally denied that it engaged in any
unfair labor practices.
Following the close of the hearing, both counsel submitted
briefs. Upon the record as a whole, including my observation
of the witnesses, briefs, and arguments of counsel, I issue the
following
I. JURISDICTION
The Respondent is a West Virginia corporation engaged in
the business of transporting coal in the vicinity of Mt. Car-
bon, West Virginia. During the course of this business, the
Respondent annually provides services valued in excess of
$50,000 to companies which annually sell and ship goods
valued in excess of $50,000 to points outside the State of
West Virginia. The Respondent admits, and I find, that it is
an employer engaged in interstate commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
It is alleged that Local Union No. 3029 and District 17 are
labor organizations within the meaning of Section 2(5) of the
Act. The Respondent neither admitted nor denied this allega-
tion, contending it was without sufficient knowledge to make
an affirmative response; however, at the hearing it did stipu-
late that they meet the Board’s definition of a labor organiza-
tion. From the entire record it does appear, and I find, that
Local 3029 is a constituent part of District 17, which in turn
is a constituent part of the United Mine Workers of America,
and that Local 3029, as well as District 17, represents em-
ployees of employers engaged in interstate commerce, in-
cluding the Respondent, with regard to wages, hours, and
other terms and conditions of employment.
Accordingly, I find that Local Union No. 3029 and Dis-
trict 17 are labor organizations within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
In a decision dated June 5, 1992, an arbitrator found that
in early 1991 certain of the Respondent’s employees went on
strike, which was settled with the execution of a memo-
randum of understanding (MOU) on February 4, 1991. As
the arbitrator noted, the MOU is ‘‘short and crude’’ and was
meant to ensure that the hauling of coal would be done by
the Respondent’s employees.
The MOU provides a wage rate, seniority, how employee
problems will be handled, and a provision that the Respond-
ent ‘‘will recognize the settlement of disputes as defined in
Article XXIII of the National Bituminous Coal Wage Agree-
ment of 1988.’’ There are also provisions relating to certain
withholdings from wages, reopening the agreement, and
management rights. The whole agreement is on one legal-
size page, with a wage addendum on the second page.
A seniority list of employees, attached as the third page,
was made up 2 or 3 weeks later, according to the testimony
of Ronald Nibert, a truckdriver for the Respondent and one
of the three union committeemen.
The MOU contains no recognition clause or bargaining
unit description, nor does it include such by reference to any
other collective-bargaining agreement or document.
Nibert testified the Union (in his testimony the United
Mine Workers of America) has been representing the Re-
spondent’s employees since February 4, 1991. In answer to
the question of how many employees the Respondent had at
the time, he said: ‘‘45 to 60. At the time we—at the time
that we went—were voted in Union, there was approximately
35.’’
Robert Bess, a field representative for District 17, testified
that ‘‘I represent the classified employees who work for
A&M Trucking.’’ ‘‘I’m referring to the Union employees or
the employees who belong to the United Mine Workers and
also work for A&M Trucking.’’ He further testified that he
has represented those employees since February 1991 and he
identified the MOU, although it was signed by another field
representative.
995A & M TRUCKING
Bess testified that after the arbitration decision noted
above, he requested certain information from the Respondent
relating to subcontracting. And he testified that he has not
received the information. On subsequent occasions he also
requested information which the Respondent has declined to
give.
These requests for information, and the Respondent’s re-
fusal to comply, are alleged to be violative of Section
8(a)(5).
Nibert testified at the hearing preceding the arbitration de-
cision. Tony Mayes, the Respondent’s president, was of the
opinion that Nibert lied at the hearing and told him so.
Mayes further stated that because of this he would no longer
discuss problems with Nibert as one of the Union’s com-
mitteemen. This refusal by Mayes to deal with Nibert is al-
leged to be violative of Section 8(a)(5).
B. Analysis and Concluding Findings
In the third consolidated complaint herein it is alleged, and
the Respondent denied, that the ‘‘employees of the Respond-
ent set forth in the National Bituminous Coal Wage Agree-
ment of 1988, herein called the Unit, constitute a unit appro-
priate for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.’’
It is also alleged, and denied, that the District 17 and
Local 3029 have been the designated exclusive collective-
bargaining representatives of the unit and since February 4,
1991, and the Respondent has recognized them as such by
virtue of the National Bituminous Coal Wage Agreement of
1988.
That a union has been designated the representative of a
majority of employees in a unit appropriate for collective
bargaining is the threshold issue in a refusal-to-bargain case.
On this issue, as all others, the General Counsel has the bur-
den of proof by a preponderance of the credible evidence.
That is, the burden is on the General Counsel to establish the
appropriate bargaining unit and majority status of the union
in that unit. E.g., Charles F. Reichert, 124 NLRB 28 (1959).
There the Board held that the General Counsel did not meet
his burden where the only evidence of majority status was
a Pennsylvania State Board certification which was subse-
quently revoked for lack of jurisdiction.
It has long been settled that ‘‘the existence of a prior con-
tract, lawful on its face, raises a dual presumption majority—
a presumption that the union was the majority representative
at the time the contract was executed, and a presumption that
its majority continued at least through the life of the con-
tract.’’ Bartenders Assn. of Pocatello, 213 NLRB 651, 652
(1974), citing Shamrock Dairy, 119 NLRB 998 (1957), and
124 NLRB 494 (1959), enfd. 280 F.2d 665 (D.C. Cir. 1960),
cert. denied 364 U.S. 892 (1960).
But in these and subsequent cases, the contract relied on
to establish the presumption was a comprehensive collective-
bargaining agreement containing a unit description and in
each there was some kind of affirmative showing that the
company had recognized the union as the exclusive rep-
resentative of employees in that unit. In most of the cases
following Bartenders and Shamrock the employer admitted
recognition of the union in an appropriate unit, the issue liti-
gated being the union’s alleged subsequent loss of majority
status. In these cases there was a factual basis to conclude
that at one time the union in fact represented a majority of
employees in an appropriate unit.
The issue here is whether the facts support a conclusion
that the Local or District were designated as the bargaining
representative of a majority of the Respondent’s employees
in an appropriate unit. The General Counsel seems to argue
that majority status and the appropriate unit may be inferred
from the fact that the Respondent executed the MOU, which
in turn was incorporated by reference the National Bitu-
minous Coal Wage Agreement of 1988. I do not accept this
argument.
On its face, the MOU only incorporates article XXIII, Set-
tlement of Disputes. It does not adopt any other provision of
the National contract, such as a bargaining unit description.
There is little evidence that either District 17 or Local
3029 was ever designated as the bargaining representative by
a majority of the Respondent’s truckdriver employees (as-
suming a unit of only truckdrivers would be appropriate).
Nibert testified that at the time the MOU was executed, the
Respondent had about 35 truckdrivers, which is consistent
with the seniority list on which there are 39 names. There
is nothing to suggest how many were members or had other-
wise designated the Union.
Perhaps his testimony can be read to mean that in Feb-
ruary 1991 the Respondent had 45 to 60 employees, 35 of
whom were union members. But this is a stretch and, I con-
clude, is insufficient to sustain the General Counsel’s burden.
If in fact a majority of the Respondent’s truckdriver employ-
ees had designated the Union in some manner surely more
definitive evidence than this would be available. Indeed,
stronger evidence was found insufficient by the Board in
Reichert, supra, where Pennsylvania State Board certification
was subsequently revoked for lack of jurisdiction. Though
voided, the Pennsylvania certification showed that a majority
of employees had designated the union.
Beyond that, the testimony of Bess and Mayes suggest that
the parties intended only that union members would be cov-
ered under the MOU, and not all employees. Contracts which
apply only to union members do not imply company recogni-
tion of the union as the representative of employees in an ap-
propriate unit under Section 9(c) of the Act. Cargo Packers,
109 NLRB 1184 (1954). ‘‘It is well settled that a ‘members
only’ contract does not afford the kind of representation nor
establish the type of bargaining unit which the Act con-
templates.’’ Ron Wiscombe Painting & Sandblasting Co.,
194 NLRB 907, 908 (1972).
I conclude that at most the General Counsel established a
members-only recognition by the Respondent. Such is cer-
tainly permissible and probably enforceable under Section
301 of the Act. However, it does not mean that the Local
or District is entitled to the rights normally attendant where
a labor organization has been designated by a majority of
employees in an appropriate unit and has been so recognized
by their employer.
I therefore conclude that the Respondent did not violate
Section 8(a)(5) when it refused to furnish information or deal
with Nibert. And, I shall recommend that the complaint be
dismissed.
[Recommended Order for dismissal omitted from publica-
tion.]