Quality Building Contractors, Inc.

QUALITY BUILDING CONTRACTORS 342 NLRB No. 38 429 Quality Building Contractors, Inc. and Bricklayers and Allied Craftworkers, Local No. 1, New York, B.A.C.I.U., AFL–CIO. Case 29–CA– 25646 June 30, 2004 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH Pursuant to a charge filed by Bricklayers and Allied Craftworkers, Local No. 1, New York, B.A.C.I.U., AFL– CIO (the Union), on June 9, 2003, the General Counsel of the National Labor Relations Board issued a complaint on September 3, 2003, alleging that the Respondent vio- lated Section 8(a)(5) and (1) of the National Labor Rela- tions Act by refusing to provide information requested by the Union. The Respondent filed an answer admitting in part and denying in part the allegations in the complaint. On October 27, 2003, the General Counsel filed a Mo- tion for Summary Judgment and Motion to Strike Por- tions of Respondent’s Answer. On October 29, 2003, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response on November 18, 2003. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The complaint alleges that since on or about April 4, 2003, the Respondent has failed and refused to furnish the Union with requested information necessary for, and relevant to, the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit. The requested information pertained to a worksite differ- ent from the site at which the Respondent initially em- ployed union members pursuant to the parties’ collec- tive-bargaining agreement signed in 2002. The Respon- dent denies that it has a duty to provide this information and denies that the information is necessary and relevant to the Union’s duties. We disagree. First, for the reasons set forth below, we find that the Respondent’s obligation to provide this information is definitively resolved by our finding on the threshold issue—i.e., that the collective- bargaining agreement entered into between the Respon- dent and the Union by its terms, was unambiguously multisite in scope.1 Second, for the reasons set forth be- 1 Chairman Battista agrees that the requested information is relevant to a grievance alleging that the contract between the Respondent and the Union covered multiple sites. However, Chairman Battista does not pass on the merits of that grievance. In 8(a)(5) “informational” cases, the issue is whether the requested information is relevant to the proc- low, we further find that there are no factual issues war- ranting a hearing in this matter and that the Respondent’s affirmative defenses are inadequate to defeat the Motion for Summary Judgment. The Respondent is a general contractor engaged in the construction industry in and around New York City. In September 2002, the Respondent was awarded a contract to perform work at the Essex House in Manhattan. That contract required the Respondent to employ union labor. As a consequence of the Essex House contract, the Re- spondent executed a collective-bargaining agreement with the Union on October 4, 2002, which agreement was effective, by its terms, from July 1, 2000, through June 30, 2004.2 The 2000–2004 agreement contains several interre- lated clauses that together establish its scope. The “Scope of Work” clause, article IV, describes the type of work covered and includes the pointing, cleaning, and caulking work at issue in this case. The “Geographical Jurisdiction” clause, article V, provides that the agree- ment shall apply to all covered work within the Union’s jurisdiction, which includes the five counties of New York City and Nassau and Suffolk counties. The “Union Recognition” clause, article VI, provides that the Re- spondent recognizes the Union as the exclusive collec- tive-bargaining agent for its employees on all present and future jobsites within the Union’s jurisdiction. Additionally, the collective-bargaining agreement con- tains a provision restricting the Respondent’s authority to subcontract bargaining unit work. The “Other Contracts” clause, article XX, section 4(b), provides that “[t]he Em- ployer must not subcontract bargaining unit work unless the subcontractor receiving the subcontract has an agreement with the Union.” In late 2002 or early 2003,3 the Respondent began working at Park City Estates, in Rego Park, New York, where the Respondent was performing pointing, clean- ing, and caulking work (PCC work). During March 2003,4 the Union became aware that the Respondent was employing individuals to perform PCC work at the Park City site who were not union members. On March 11, Michael Barbera, a union representative, called Larry essing of the grievance, not whether the grievance has merit. See NLRB v. Acme Industrial Co., 385 U.S. 432, 437–438 (1967). 2 The 2000–2004 collective-bargaining agreement was negotiated by the International Union and the Building Restoration Contractors Asso- ciation. 3 The Respondent argues that it began work on the Park City Estates Project in September 2002, while the General Counsel contends the Respondent began the work in March 2003. This factual dispute over the timing of events is not material in light of our conclusion below that the agreement clearly covers all preexisting projects. 4 All dates refer to 2003, unless otherwise indicated. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 430 Schwartz, Respondent’s owner, and requested that, pur- suant to the union-security clause in the parties’ collec- tive-bargaining agreement, the Respondent require em- ployees performing PCC work at Park City to join the Union or terminate them. Schwartz did not comply with this request. About April 4, the Union’s attorney informed the Re- spondent by letter that the Union was filing a grievance because the Respondent was performing PCC work cov- ered by the collective-bargaining agreement at the Park City site with employees who were not members of the Union. In order to process the grievance, the Union re- quested the following information: (1) the contract for the Park City project; (2) timesheets for all employees on the Park City project; and (3) all requests for payment submitted to the customer/building owner for the Park City project. About June 4, the Respondent replied, stating that “the Agreement between [Respondent] and Park City Estates was signed prior to our signing an Agreement with PCC Local Union 1. Therefore, [Respondent disputes] the necessity for any union employees to be on the job.” As stated above, the General Counsel contends that the Respondent’s failure to provide the information violates Section 8(a)(5) of the Act because the information is relevant to the Union’s representational duties. Specifi- cally, the General Counsel asserts that the requested in- formation is relevant to the Union’s claim that the Re- spondent breached its obligation under the 2000–2004 collective-bargaining agreement to hire union members for the Park City job, which job is encompassed by that agreement’s geographical jurisdiction. The Respondent contends that it has no duty to provide the information because its collective-bargaining agreement with the Un- ion covers only the Essex House project and the informa- tion requested pertains to Park City, which is not covered by that agreement. First, we reject the Respondent’s claim that the parties’ collective-bargaining agreement was restricted to the Essex House project. By its literal terms, the 2000–2004 agreement clearly covers the Park City job as well. The agreement provides that its terms shall apply to all point- ing, cleaning, and caulking work performed within a seven county area. The Park City Estates Project is lo- cated within that geographic area. Notwithstanding the unambiguous language of the 2000–2004 agreement, the Respondent attempts to con- tradict its clear terms by pointing to extrinsic evidence. Specifically, the Respondent, citing the Union’s state- ments in October, November, and December 2002, ar- gues that the parties intended the agreement to cover only the Essex House project. The Respondent contends that Union agents told the Respondent’s representatives, both before and after they signed the 2000–2004 agree- ment, that the agreement covered only the Essex House project and that it established only an 8(f) relationship. The Respondent further asserts that “[i]t was also under- stood and represented that the CBA would not apply to any of [the Respondent’s] then pre-existing, ongoing projects.” The Respondent further contends that after it began performing work on the Park City project, the Union asked the Respondent to “get off on the right foot” with the Union and to show its “good faith” in their relation- ship by hiring some union members on the Park City project. Again, the Respondent alleges that the Union told it that the collective-bargaining agreement did not cover the Park City project. In January 2003, the Re- spondent hired two union members to work at the Park City project. We find that notwithstanding the Respondent’s conten- tion that, when signing the 2000–2004 agreement and thereafter, the Union advised the Respondent that the collective-bargaining agreement was an 8(f) prehire agreement that would be applicable to the Essex House job only, the contract by its clear and unambiguous terms states that it was not so limited.5 In these circumstances, Board precedent prohibits the use of parol evidence to vary the unambiguous terms of a collective-bargaining agreement. See NDK Corp., 278 NLRB 1035 (1986) (“National labor policy requires that evidence of oral agreements be unavailing to vary the provisions of a written collective-bargaining agreement valid on its face.”). As the Ninth Circuit stated, “Where contractual provisions are unambiguous, the NLRB need not con- sider extrinsic evidence. Parol evidence is therefore not only unnecessary but irrelevant.” NLRB v. Electrical Workers Local 11, 772 F.2d 571, 575 (9th Cir. 1985). See also America Piles, Inc., 333 NLRB 1118 (2001) (where agreement clearly required employer to adopt master agreement covering multiple locations, parol evi- dence that employer intended to bind itself only on a single site is not considered). Accordingly, we conclude 5 The Respondent argues that it had no duty to provide the requested information because it had only an 8(f) relationship with the Union. An employer’s duty to provide relevant information exists in the 8(f) con- text as well as in the 9(a) context, with minor differences not relevant here. Diversified Bank Installations, 324 NLRB 457, 468 (1997) (“The statutory duty to provide information ‘is equally applicable during the term of an 8(f) agreement.’”); Gary’s Electrical Service Co., 326 NLRB 1136, 1136 (1998) (finding that the employer violated Sec. 8(a)(5) by refusing to provide relevant information to an 8(f) union), enfd. 227 F.3d 646 (6th Cir. 2000). Therefore, the Board need not resolve whether the parties’ relationship is governed by Sec. 9(a) or Sec. 8(f). QUALITY BUILDING CONTRACTORS 431 that, based on the four corners of the document, the 2000–2004 agreement is not limited to one project, but— by its own terms—covers all existing and future jobs. Our finding that the Respondent’s agreement with the Union was not restricted to one project bears on the ques- tion of the relevancy of the information requested by the Union. That request—concerning the Park City job— pertained to work performed by the Respondent within the geographical scope of the collective-bargaining agreement. As such, the Union was entitled to the infor- mation. “When a union seeks information pertaining to employees within a bargaining unit, the information is presumptively relevant to the union’s representational duties, and the General Counsel may establish a violation for the employer’s failure to furnish it without any fur- ther showing of relevancy.” Commonwealth Communi- cations, Inc., 335 NLRB 765, 768 (2001), enf. denied on other grounds 312 F.3d 465 (D.C. Cir. 2002). Where information requested relates to matters outside the unit that might have a bearing on the employment terms and conditions of the unit employees, the burden is on the General Counsel to prove relevancy in order to establish a violation on the basis of the employer’s failure to fur- nish the requested information. Id., and cases there cited. Whether or not the presumption applies, we apply a “lib- eral, discovery-type standard” in determining relevancy. Id. (citing NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967)). Here the Union requested information relevant to the grievance it filed. The Union sought the contract for the Park City job, timesheets for employees working on the job, and requests from the Respondent to be paid. The timesheets for employees working on the Park City job are presumptively relevant. This information pertains directly to the wages and hours of employees performing bargaining unit work at the Park City site. Refusal to provide such information “constitutes in most instances a per se violation of the duty to bargain in good faith.” Teleprompter Corp. v. NLRB, 570 F.2d 4, 8 (1st Cir. 1977). The contract for the Park City job and the Respon- dent’s requests to be paid for this job are arguably rele- vant. See, e.g., Pertec Computer, 284 NLRB 810, 822– 823 (1987) (union entitled to subcontract to ascertain whether employer violated a clause in the parties’ collec- tive-bargaining agreement prohibiting subcontracts), decision supplemented 298 NLRB 609 (1990), enfd. in relevant part 926 F.2d 181 (2d Cir. 1991), cert. denied 502 U.S. 856 (1991). When making requests for information that is not pre- sumptively relevant, the Union must state why the in- formation is relevant. See Associated Ready Mixed Con- crete, 318 NLRB 318 (1995), enfd. 108 F.3d 1182 (9th Cir. 1997); Island Creek Coal Co., 292 NLRB 480, 490 (1989), enfd. mem. 899 F.2d 1222 (6th Cir. 1990). In this case, in its written information request, the Union stated: “This information is necessary in order to deter- mine the amount of lost wages and benefits that should have been paid to [Union] members from the time the pointing, cleaning and caulking work began to date.” Thus, the Union articulated why the contract for the Park City job and the Respondent’s requests to be paid were relevant under the Board’s liberal standard for relevance. Commonwealth Communications, supra (where project fell within contract’s scope, employer required to provide information regarding that project). The Respondent has raised several affirmative de- fenses to the allegation that it unlawfully refused to fur- nish the requested information. We reject each of these defenses. First, the Respondent argues that Section 10(b) bars the complaint. Section 10(b) provides that “no complaint shall issue based upon any unfair labor prac- tice occurring more than six months prior to the filing of the charge with the Board.” The Union learned in Octo- ber 2002 that the Respondent was arguably violating the agreement by using nonunion labor. The Union re- quested the information in a letter dated April 4, which set forth its grievance. Two months later, on June 4, the Respondent replied, by letter, stating that the agreement did not cover the Park City project. The letter did not address the Union’s request for information. The Union filed its charge on June 9. The Respondent argues that the 10(b) period began to run in October 2002, when the Union learned that the Respondent was using nonunion labor on the Park City Estates Project. The General Counsel argues that the 10(b) period began to run from June 4, the date that the Respondent replied to the Un- ion’s letter containing its information request. The Board made clear in Oliver Insulating Co., 309 NLRB 725 (1992), enfd. 995 F.2d 1067 (6th Cir. 1993), that the 10(b) period begins to run when an employer clearly and unequivocally denies a union’s information request, and not when the union learns of the underlying breach of contract that prompted its grievance.6 Therefore, even assuming, arguendo, that the Respondent’s June 4 letter constituted an unequivocal refusal to provide the re- quested information, the Union filed its charge well within the 10(b) period. 6 See also California Nurses Assn., 326 NLRB 1362, 1368 fn. 10 (1998) (10(b) requirement met where employer filed charge within 6 months of union’s clear and unequivocal denial of its information re- quest); Commercial Property Services, 304 NLRB 134, 143 (1991) (Sec. 10(b) satisfied where union filed charge within 6 months from date of its request and employer’s denial). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 432 We likewise reject the Respondent’s argument that the Union waived its right to obtain relevant information. A union can relinquish its statutory right to information only through a “clear and unmistakable” waiver. New Jersey Bell Telephone, Co., 289 NLRB 318, 330 (1988), enfd. mem. 872 F.2d 413 (3d Cir. 1989). The Respon- dent contends that the Union “clearly and unmistakably” waived its right to the requested information by refusing to challenge the Respondent’s use of nonunion labor for over 6 months. In CEC, Inc., 337 NLRB 516 (2002), the Board, adopting a judge’s opinion, held that a union did not waive its right to information about an alleged alter ego of the respondent even though the union had known of the alter ego’s existence for several years and had not filed a grievance. As in CEC, we find that the Union’s inaction in this case did not amount to a “clear and un- mistakable” waiver of its right to information. The Respondent further contends that the Union waived its right to the requested information by allegedly making statements in October, November, and December 2002 that the agreement did not apply to the Park City Estates Project. As discussed above, we find that the clear unambiguous language of the contract shows that it was not confined to one location. There is no evidence that the parties entered into a new or supplemental agreement, oral or otherwise, that varied the clear and unambiguous terms of the contract signed by the parties. Cf. Freezer Queen Foods, 215 NLRB 638 (1974) (hold- ing that parties can alter contract by subsequent agree- ment). The Respondent’s final waiver argument is that the Union “clearly and unmistakably” waived its information rights by agreeing with the Respondent to place two Un- ion members on the Park City Estates Project. The Re- spondent cites no authority in support of this argument. We find that the Union’s agreement to place two em- ployees on the project did not signal a clear and unmis- takable waiver of the Union’s information rights. Finally, the Respondent argues that the Union is not entitled to the requested information because the under- lying grievance is in aid of an unlawful subject of bar- gaining. The Respondent notes that Section 8(f) author- izes a union and an employer to enter into a union- security agreement that requires employees to join the union after 7 days, but not earlier. The Respondent ar- gues that the grievance contradicts Section 8(f) to the extent that the grievance challenges the Respondent’s alleged breach of the union-security clause by failing to terminate nonmembers, some of whom may have been employed for fewer than 8 days. The Respondent’s ar- gument is specious. The Union has requested informa- tion relevant to a colorable grievance. Even though some nonmembers may have been employed fewer than 8 days, the grievance is not therefore “in aid of” an unlaw- ful subject of bargaining, nor is the Respondent relieved of its statutory duty to furnish the information in question to the Union. In sum, the requested information is relevant to the Union’s performance of its statutory duties and the Re- spondent has failed to assert a successful affirmative de- fense, even assuming the truth of its factual assertions. There is no material factual dispute, and the General Counsel is entitled to judgment as a matter of law. Ac- cordingly, we grant the General Counsel’s Motion for Summary Judgment.7 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a domestic cor- poration with an office and place of business in Great Neck, New York, has been a general contractor engaged in performing masonry and exterior façade restoration work at construction jobsites in the New York metropoli- tan area. During the 12-month period preceding issuance of the complaint, the Respondent purchased and received at its Great Neck facility goods and supplies valued in excess of $50,000 directly from points outside the State of New York. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. We further find that Bricklayers and Al- lied Craftworkers, Local No. 1, New York, B.A.C.I.U., AFL–CIO (the Union) is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES On April 4, 2003, the Union, by letter, requested the Respondent to furnish necessary and relevant informa- tion, and, since about the same date, the Respondent has failed and refused to do so. We find that the Respon- dent’s conduct constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing to furnish the Union, upon re- quest in April 2003, the contract between the Respondent and the owner of the Park City Estates Project, any re- 7 Because we have granted summary judgment we need not pass on the General Counsel’s motion to strike portions of the Respondent’s answer. See FPA Medical Management, Inc., 324 NLRB 802, 802 fn. 2 (1997) enf. denied in part on other grounds 157 F.3d 909 (D.C. Cir. 1998); Teledyne Economic Development, 321 NLRB 58, 58 fn. 2 (1996), enfd. 108 F.3d 56 (4th Cir. 1997). QUALITY BUILDING CONTRACTORS 433 quests for payments made under that contract, and time- sheets for all employees on the project, the Respondent engaged in an unfair labor practice affecting commerce within the meaning of Section 8(a)(5) and (1) and Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent engaged in an un- fair labor practice, we shall order that it cease and desist and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent unlawfully failed and refused to furnish relevant and necessary information to the Union, we shall require the Respondent to furnish the Union with the contract between the Respondent and the owner of the Park City Estates Project, any requests for payments made under that contract, and timesheets for all employees on the Park City Estates Project. ORDER The National Labor Relations Board orders that the Respondent, Quality Building Contractors, Inc., New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to provide the Union, upon re- quest in April 2003, the contract between the Respondent and the owner of the Park City Estates Project, any re- quests for payments made under that contract, and time- sheets for all employees on the project; all of which in- formation is relevant and necessary for the performance of its duties as the collective-bargaining representative of the Respondent’s employees. (b) 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 purposes of the Act. (a) Furnish the Union with the requested information set forth above. (b) Within 14 days after service by the Region, post at its facility in Rego Park, New York, copies of the at- tached notice marked “Appendix.”8 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and 8 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 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 al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current and former employees employed by the Respondent at any time since April 2003. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist any union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail or refuse to provide the Union, as it requested in April 2003, the contract between us and the owner of the Park City Estates Project, any requests for payments made under that contract, and timesheets for all employees on the project; all of which information is relevant and necessary for the performance of its duties as the collective-bargaining representative of our em- ployees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above. WE WILL furnish the Union with the information re- quested as set forth above. QUALITY BUILDING CONTRACTORS, INC.