Ellsworth Sheet Metal, Inc.

ELLSWORTH SHEET METAL, INC. Ellsworth Sheet Metal, Inc. and Sheet Metal Work- ers' International Association, Local Union No. 83, AFL-CIO. Case 3-CA-6195 September 19, 1977 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On June 21, 1976, the National Labor Relations Board issued a Decision and Order' in the above- entitled proceeding and found that Respondent, Ellsworth Sheet Metal, Inc., had violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by virtue of its actions in refusing to furnish the Union, upon request, with information necessary for it to determine whether or not Respondent had been in compliance with its contrac- tual obligations to contribute to certain fringe benefit trust funds, and ordered Respondent to furnish said information. Thereafter, on January 17, 1977, the Board filed an application for Summary Entry of Judgment enforcing its order in the U.S. Court of Appeals for the Second Circuit, contending that Respondent had waived all objections to the Board's Order by not timely filing exceptions to the Adminis- trative Law Judge's Decision. On February 22, 1977, the court denied the Board's application "without prejudice to the Board to consider the late filing of an answer by respondent as an implicit motion to extend time." 2 The Board, having decided not to seek review of the court's ruling, will reconsider the above-men- tioned Decision and Order in conformity with the court's ruling which we respectfully recognize as binding on us for the purpose of deciding this case. 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 again considered the record and the Administrative Law Judge's Decision dated April 2, 1976, in light of Respondent's exceptions thereto pursuant to the order of the U.S. Court of Appeals for the Second Circuit dated February 22, 1977, and ' 224 NLRB 1506. 2 Respondent's exceptions were initially rejected pursuant to Sec. 102.46(a) of the Board's Rules and Regulations, inasmuch as its letter to the Board to which the exceptions were attached was mailed on Apnl 26. the due date, and not received until April 27. I day after the last day for filing exceptions under the above rule. 232 NLRB No. 30 has again decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge as originally modified in our Decision and Order dated June 21, 1976. Respondent's exceptions, which are not addressed specifically to the Administrative Law Judge's Decision, contend essentially that the information requested by the Union is either unnecessary for the Union to police its agreement, or that there has been an insufficient basis established on the record for requiring its production. With respect to the latter point, as the Administra- tive Law Judge found, the General Counsel did present evidence that the Union had received reports that specific individuals for whom Respondent had not made the required contributions were performing covered work. Respondent, on the other hand, failed to produce any evidence to rebut this testimony. For the reasons expressed by the Administrative Law Judge, as well as the fact that it would be anomalous indeed to require the Union to establish exactly the information it needs before we would require Respondent to furnish it, we reject this contention and find that sufficient basis has been established for requiring production of the requested information. With respect to the necessity of the requested information, we find, as did the Administrative Law Judge, that the Board has established that similar information, requested in the same context, is relevant and necessary to determine whether appro- priate payments are being made to funds established by contract, and accordingly reject this contention as lacking in merit. L & M Carpet Contractors, Inc., 218 NLRB 802, 804 (1975).3 Finally, with respect to Respondent's final conten- tion that it had not refused to provide the requested information, we find, again as did the Administrative Law Judge, that Respondent's delay of 3 months without even responding to the request for informa- tion is sufficient, in itself, to establish the alleged violation, and that moreover we find that, once the request for information was received, it was incum- bent on Respondent to react in some manner to the request and that the Union was not required to do more as a precondition to establishing its right to have the information produced. 3 Respondent further contends, apparently. that it has no obligation to provide information as to certain of the fringe benefit funds because Respondent was not obligated to contribute to them. Ilowever, Respondent adduced no evidence in support of this contention at the hearing. Accordingly, we find this contention lacking in merit. 109 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Ellsworth Sheet Metal, Inc., Fort Edward, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order herein issued on June 21, 1976, at 224 NLRB 1506. 110