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In any event, the Union filed a grievance [2] concerning the terms and conditions being applied to the onsite owner-operators, asserting that the onsite owner-operators were statutory employees whose working conditions are to be governed by the collective-bargaining contract.

In order to process the grievance, it also demanded certain information from Respondent in order to carry out its duty of employee representation. Respondent at first declined to provide any information whatsoever.

However, about a year after the first demand, some material was supplied. The General Counsel and the Union assert that the material failed to satisfy the request and was, in any event, untimely. Respondent justifies its lack of response on the ground that the owner-operators are independent contractors and are, first, outside the bargaining unit and second, that such a demand is the enforcement of an illegal contract clause, pointing to Section 8 e of the Act.

It also asserts that it is an attempt to force business owners, the owner-operators, to join the Union, also barred under 8 e case law interpretation.

Clearly, the Board has held, in a variety of circumstances that owner-operators can be either statutory employees or independent contractors, depending on the facts in each case. There are many other examples and the cases are entirely fact bound.

The question presented by this complaint is whether the Union is entitled to information concerning the legal status of these owner-operators so that it can make a decision concerning what its next step, if any, will be. It is entirely conceivable that the facts it learns through this information will lead it to conclude that the owner-operators are independent contractors; it is equally likely that the information will lead it to conclude that they are statutory employees, entitled to the protection of the collective-bargaining contract.

There is no question that the Union has the right to determine whether disputed individuals are in or out of the bargaining unit. Respondent asserts that my preliminary analysis and rulings are error. It has made an offer of proof on the issue and has preserved it for review. I decide here that it should have promptly responded to the information request by either providing the information or advising why it cannot.

The bargaining unit placement issue is to be left for another day and in another forum. It also adopted any successor AGC agreement, including the one in effect at the time the Union demanded the information in issue here.

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