Herk Elevator Maintenance, Inc.

96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Herk Elevator Maintenance, Inc. and Local No. 1, International Union of Elevator Constructors, AFL-CIO. Case 2-CA-12471 May 25, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On February 24, 1972, Trial Examiner Alba B. Martin issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Herk Elevator Maintenance, Inc., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALBA B. MARTIN, Trial Examiner : This case was heard in New York, New York, on January 17, 1972, pursuant to a charge duly filed and served,' and a complaint issued on December 2, 1971. The issue litigated was whether Respondent violated Section 8(a)(5) and (1) of the Act by refusing to give the Union certain information it requested of Respondent during the term of a collective-bargaining agreement. At the close of the hearing, the General Counsel presented a thorough oral summation . After the hearing, Respondent filed a brief which has been duly considered. Upon the entire record in the case and my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Herk Elevator Maintenance, Inc., Respondent herein, is a New York corporation engaged in performing elevator maintenance and repairs and related services. During the year prior to the issuance of the complaint, a representative period, Respondent performed services valued in excess of $500,000, of which services valued in excess of $50,000were performed in, and for various enterprises located in, States other than the State wherein it is located. During the same period, Respondent received revenues in excess of $50,000 for services performed for various enterprises, each of which enterprises is an instrumentality of commerce having an annual gross revenue in excess of $50,000 from its interstate operations. The complaint alleged, the answer admitted, and I find that at all times material herein Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local No. 1, International Union of Elevator Construc- tors, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts At the time of the events herein, Respondent and the Union were parties to a 3-year collective-bargaining agreement and were at the beginning of the third year of that agreement (herein called the contract). Under the contract the Union was the exclusive bargaining agent for all of Respondent's elevator constructor mechanics and helpers engaged in construction, modernization, repair, maintenance, and contractual service work within a radius of 35 miles of City Hall in New York City, except one county in New Jersey, and including all of Long Island. Thus the contract included all of Manhattan. The contract contained broad definitions of "Repair Work." .. Contrac- tual Service Work (Maintenance Work)," "Construction Work," and "Modernization Work." The contract required that Respondent call the Union for all workmen covered by the contract. It included a union-security clause. It included, inter aha, clauses on vacation pay credit, holidays, overtime, travel expenses, minimum rates, wel- fare, and pension plan. It provided grievance machinery culminating in arbitration covering disputes "regarding the application and construction of this agreement." The contract included a subcontracting clause which set forth that any subcontract should contain a clause providing that workers covered by the contract should "be employed on this work." Under the contract, members of the Union worked for Respondent on various jobsites doing maintenance work, repair work, and modernization work. Respondent does no new construction work. Acting upon reports from members of the Union who worked for Respondent, in late 1970 or in early 1971 the Union's business agent, who serviced Brooklyn, went to "Wabassi Houses" in Coney Island, where Respondent performed the elevator maintenance work. A person who had previously worked for Respondent, but who no longer I The Union filed the charge on October 12, 1971 197 NLRB No. 20 HERK ELEVATOR MAINTENANCE, INC. 97 did, was doing the elevator maintenance there. Employees of Respondent told the business agent that this person then worked for Elevator Construction Company. The latter occupied space in the same building in the Bronx that Respondent occupied. Based on the information in this paragraph and on earlier information, when this business agent, Vincent Watson, became business manager of the Union on July 1, 1971, he caused the Union to send to Respondent on July 6, 1971, the letter set forth below. In December 1971, Business Manager Watson visited two sites in Manhattan where a "repair job was going on." At one on Riverside Drive, a truck with "Elevator Construction Company" written on it was outside and two mechanics doing elevator repair work inside told him that they worked for that company. The following day, two men doing elevator repair work in a building on West End Avenue, where Respondent did the "full maintenance" work, told Watson that they worked for Elevator Construc- tion Company. The earlier; information referred to above was that in 1970 the Union received reports from its members who worked for Respondent that their work on a job of Respondent's was being performed by Elevator Construc- tion Company employees who were not members of the Union and who were signed up with a competitor union, Local 3, "Elevator Division" of the Electricians' Union. In December 1970, three representatives of the Union and about 20 of Respondent's employees met with Respon- dent's president, Herk Mignocchi, whose employees were allegedly afraid they would lose their jobs because Mignocchi was allegedly using others to do maintenance and repair work. At this meeting, Mignocchi stated that he rents the space in the building to Elevator Construction Company and that "he has nothing to do with them." The union representatives left the meeting with the "impression that Mr. Mignocchi would adhere to the contract and dust use the men from our local." It was after this that Business Agent Watson observed what was happening at Coney Island and at the two sites in Manhattan, as stated above. On July 6, 1971, the Union wrote Respondent the following letter, to which Respondent did not reply, but which at the hearing Respondent acknowledged receiving: You are familiar with several grievances which this Union has recently had with your concern about your compliance with the collective bargaining agreement. You are aware that the contract defines what is meant by "Repair Work" and "Contractual Service Work." This is work falling within the scope of the collective bargaining agreement and must be performed by employees represented by this Union. It has come to our attention, and allegations have been made, that Herk Elevator Maintenance, Inc., is arranging to have work falling within the scope of our collective bargaining agreement performed by employ- ees of other concerns, and particularly by employees of Elevator Construction Company. Such conduct, if correct, constitutes a violation of our collective bar- gaining agreement. This Union is engaged in the investigation of this grievance and we desire to have certain information which is necessary for us to determine whether the Union has a valid and meritorious grievance. We are investigating the claim of a violation of a contract by your concern and need further information in the course of that investigation. Accordingly, will you kindly supply to us the following information and the answers to the following questions: 1. Are you, your spouse or minor child an officer, owner or shareholder of Elevator Construction Compa- ny? If so, what office do you hold and what number of shares are held by you, your spouse or minor child? 2. Are there any common officers or shareholders in Herk Elevator Maintenance, Inc. and Elevator Con- struction Company? 3. List the officers and shareholders of Elevator Construction Co. 4. List the officers and shareholders of Herk Elevator Maintenance, Inc. 5. List all jobs which Herk Elevator Maintenance, Inc. has in any way referred or subcontracted to Elevator Construction Company. List the names of such jobs, their locations and the approximate amount of contracts for such jobs. 6. Does Elevator Construction Company rent its premises from you or from Herk Elevator Mainte- nance, Inc.? Who owns the premises on which your business is located? From whom does Herk Elevator Maintenance, Inc. rent such premises and from whom does Elevator Construction Company rent such premis- es? 7. Please list all jobs of Elevator Construction Company performed in the last year with which you are familiar or with which Herk Elevator Maintenance, Inc. was in any way involved. The Union desires the above information in order to investigate fully its grievance and in order to determine whether or not there has been any violation of the collective bargaining agreement. I would appreciate your compiling this information and returning it to me immediately so that we may determine the Union's position without delay. Respondent has never given any of the information requested above to the Union, except for the information in its November 12 letter as seen below. In the investigative phase of this proceeding, after the filing and service on it of the charge, Respondent wrote the Board's regional office on October 26 that Respondent "does not make any contracts for work or labor to any Corporations, individu- als, or Partnerships," and on November 12 that Respon- dent "does not subcontract or refer any jobs to any individual or firm." On November 19, 1971, Respondent sent a copy of its November 12 letter to the Union's attorney. B. Conclusions Within an employer's general duty to provide informa- 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion needed by a bargaining representative for the proper performance of its duties2 is the specific duty to provide the bargaining representative with requested relevant information of use to it in helping it decide whether to process a grievance.3 When the Union began to suspect from the imperfect information available to it that some of the work covered by its contract with Respondent was being performed by employees of Elevator Construction Company, it did not have to rely upon that imperfect hearsay evidence in making its evaluation of the situation and its determination whether or not to process the employees' grievance at all and if so how far to process it. Before making that evaluation and those determinations, Respondent was entitled to obtain from Respondent such information as was reasonably and probably relevant to the grievance. It was not bound to accept Respondent's conclusory statements that it "has nothing to do with" Elevator Constrkuction Company, other than to rent space to it, and that Respondent "does not subcontract or refer any jobs to any individual or firm." The Union was entitled to information which was relevant to the issues of subcontracting and referral. The information requested by the Union in its July 6 letter was reasonably and probably relevant to these issues of subcontracting and referral. The information would permit the Umon to determine whether in its view Respondent was performing the work through an alter ego; or whether or not Respondent was subcontracting out work covered under the contract without insuring that the Union's workers "be employed on this work." The requested information would permit the Union to deter- mine whether in its judgment the contract was being violated and whether it was likely to be able to convince an arbitrator that this was the fact. The requested information might enable the Union to convince Respondent that it was violating the contract and thereby avoid going to arbitration Or, the requested information might convince the Union that there was no violation of the contract and that it should not press the grievance. Under all the circumstances of this case, I hold that by failing and refusing to provide the Union with the information it requested Respondent violated and is violating Section 8(a)(5) and (1) of the Act .4 CONCLUSIONS OF LAW 1. Herk Elevator Maintenance, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local No. 1, International Umon of Elevator 2 N L R B v Truitt Manufacturing Company, 351 U S 149 3 N L R B v Acme Industrial Co, 385 U S 432 4 Cf Fafnir Bearing Company, 146 NLRB 1582, enfd, 362 F 2d 716 (C A 2), N L R B v Wagner Iron Works, 220 F 2d 126 (C A 7, 1955), cert denied 350 U S 981, P R Mallory & Co, Inc, 171 NLRB 457, enfd 411 F 2d 948 (C A 7), Employing Plasterers' Association of Allegheny County, Pa, 181 NLRB 142 Respondent contended that this matter should have been taken to arbitration rather than brought to the Board This dispute does not involve the application or construction of the contract This matter involves an unfair labor practice The courts have held that the existence of an arbitration remedy cannot oust the Board from its jurisdiction to present unfaii labor practices See N L R B. v Wagner Iron Works, supra Constructors , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing and refusing to provide the Union with the information requested in its letter to Respondent dated July 6, 1971, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY To remedy the unfair labor practices found above, I recommend a narrow cease and desist order and certain affirmative action which will effectuate the policies of the Act. I recommend that, upon request, Respondent immedi- ately supply the Union with full and complete answers to all the questions included in the Union's letter to Respondent dated July 6, 1971. The information in said answers shall cover the entire period from July 6, 1970, to the date that the answers are given. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:5 ORDER Respondent, Herk Elevator Maintenance, Inc., of New York, New York, its officers, agents, successors, and assigns, shall. 1. Cease and desist from: (a) Refusing to bargain collectively with Local No. 1, International Union of Elevator Constructors, AFL-CIO, by refusing to furnish it with the information requested by it in its letter to Respondent dated July 6, 1971. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, in the manner prescribed in the portion of the Trial Examiner's Decision entitled "Reme- dy," furnish the Union with the information requested in the Union's letter to Respondent dated July 6, 1971. (b) Post at its office and place of business in New York, New York, copies of the attached notice marked "Appen- dix."6 Copies of said notice, on forms provided by the Regional Director for Region 2 (New York, New York), after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon 5 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 6 In the event that the Board's 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 " HERK ELEVATOR MAINTENANCE, INC receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director , in writing, within 20 days from the receipt of this Decision , what steps have been taken to comply herewith.? 7 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read "Notify the Regional Director for Region 2, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, furnish Local No. 1, International Union of Elevator Constructors, AFL-CIO, with the information requested in the Union's letter to us dated July 6, 1971. 99 WE WILL NOT refuse to bargain collectively with Local No. 1, International Union of Elevator Construc- tors, AFL-CIO, by refusing to furnish it with the information requested by it in its letter to us dated July 6, 1971. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section ' 7 of the Act. Dated By HERK ELEVATOR- MAINTENANCE, INC. (Employer) Representative Title This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 36th Floor, Federal Building, 26 Federal Plaza, New York, New York 10007, Telephone 212-264-3311