Custom Excavating, Inc.

CUSTOM EXCAVATING, INC. 285 Custom Excavating, Inc. and International Union of Operating Engineers, Local 139, AFL -CIO. Case 30-CA-3571 February 17, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On November 5, 1976, Administrative Law Judge Ivar H. Peterson issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein. The Administrative Law Judge inadvertently failed to set forth Conclusions of Law. Upon the findings of fact and upon the entire record in this case the Board makes the following: CONCLUSIONS OF LAW 1. Custom Excavating, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 139, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to furnish or make available to the Union the names and addresses of its customers during 1975 for whom work was performed with construction equipment and the dates such work was performed for said customers, Respondent has en- gaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. ORDER 1. Substitute the following for paragraph 1. "1. Cease and desist from: "(a) Refusing to bargain with the Union by refusing to furnish or make available to the Union the names and addresses of its customers during 1975 for whom work was performed with construction equipment, and the dates such work was performed for said customers. "(b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. 1 In his Decision as sec. II, A, par. 6, the Administrative Law Judge inadvertently indicated that the Union 's grievance against Respondent had stated that Respondent had paid the appropriate amounts for wages and for fringe benefits. It is clear from the substantive issues in this case that the grievance alleged that Respondent had not paid the appropriate amounts for wages and for fringe benefits . We hereby correct that error. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain with the International Union of Operating Engineers, Local 139, AFL-CIO, by refusing to furnish or make available all information relevant and necessary to the processing of the grievance filed on January 8, 1976, including the names and addresses of all our customers during 1975 for whom we performed work with construction equipment, and the dates such work was per- formed by us for said customers. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL, upon request, make available to the above-named Union the names and addresses of our customers during 1975 for whom we per- formed work with construction equipment, and the dates such work was performed. CUSTOM EXCAVATING, INC. 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 Administrative Law Judge as modified below and hereby orders that the Respon- dent, Custom Excavating, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as herein modified: DECISION STATEMENT OF THE CASE IvAR H. PETERSON, Administrative Law Judge: The hearing in this case was held in Milwaukee, Wisconsin, on July 20 and 21 and August 4, 1976, based upon the complaint issued by the Regional Director for Region 30 on May 10, which in turn was based upon a charge filed on 228 NLRB No. 38 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 19 by International Union of Operating Engineers, Local 139, AFL-CIO, herein called the Union. Briefly stated, the complaint alleged that Custom Excavating, Inc., herein called Respondent, since on or about January 14, had refused to bargain in good faith with the Union by refusing to furnish the Union with documentary evidence containing the names and addresses of Respondent's customers during 1975 , for whom work was done by Respondent's unit employees, and the dates such work was performed for these customers. The complaint alleged that the foregoing information was necessary for the Union to perform its statutory duty as the collective-bargaining representative of the employees in the appropriate unit. In its answer, dated June 10, Respondent admitted certain jurisdictional allegations but denied that it had engaged in any unfair labor practices. Affirmatively, Respondent alleged that the Union "has entered upon a course of harassment of Custom Excavating and attempts to harass its customers and employees and associates." On July 15, the Acting Regional Director issued an amendment to the complaint and, on or about July 16, counsel for Respon- dent sought postponement of the hearing, but the Regional Director denied Respondent's request. At the outset of the hearing, counsel for Respondent filed a petition to revoke a subpena issued by the General Counsel seeking certain books and records relating to Respondent's business and, in addition, filed jurisdictional objections. I denied the motion to revoke the subpena and further ruled that the jurisdictional objections had no merit. Counsel for Respondent appealed my ruling to the Board and, on July 26, the Board denied Respondent 's request for special permission to appeal and also affirmed my refusal to postpone the hearing . The first 2 days of hearing were in substantial part concerned with taking testimony with respect to Respondent's business, in particular, whether it came within the Board's jurisdictional standards. On the last day of the hearing, Respondent filed an answer to the amended complaint, admitting the jurisdictional allegations of the complaint. Upon the entire record in the case and, upon my observation of the demeanor of the witnesses as they testified, and having considered the briefs filed with me by counsel for the General Counsel on September 20 and by counsel for Respondent on September 29,1 I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Wisconsin corporation, is engaged in the construction industry and conducts grading and excavating operations from its Glendale , Wisconsin, location. Respon- dent has at all times material been a member of a multiemployer association known as the Wisconsin Exca- vators and Graders Association, herein called the Associa- tion, and is bound by collective-bargaining agreements negotiated between the Association and the Union. The latest agreement expired May 31. During the calendar year I Counsel for Respondent wrote to me under date of September 30, received by me on October 4, with copies to counsel for the General Counsel, concerning the motion the latter filed with me to strike the brief of 1975, or during the 12 months preceding the issuance of the amendment to the complaint, dated July 15, Respondent performed services valued in excess of $50,000 for custom- ers which, in turn, purchased and received or shipped and sold goods and materials valued in excess of $50,000 outside the State of Wisconsin. It is further admitted that at all times material the Union has been a labor organization within the meaning of Section 2(5) of the Act, and that Ronald Grimm has occupied the position of president of Respondent and is an agent of Respondent within the meaning of Section 2(11) of the Act. Respondent further admits that it has recognized the Union as the exclusive representative of its employees in an appropriate unit as defined in the Association contract, but affirmatively alleges that the Union is the bargaining representative of only a portion of its employees. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Events Robert Retzack, the financial secretary and business representative of the Union since early 1971, customarily visits jobsites where members of the Union are employed, for the purpose of checking on compliance with the collective-bargaining agreement and processing grievances or other problems that union members may have. On September 13, 1975, Retzack saw Gerry Thimke, a union member, working as an operating engineer for Respondent. Retzack made notes of his observations on this occasion. In substance, they reveal that at 11:30 in the morning he observed Gerald Thimke, a member of the Union, excavat- ing blacktop from a driveway and parking area. Two tandem trucks were hauling crushed stone into the area, which Thimke was leveling with an endloader. Work was still in process at 12:30, but had been completed when he next observed the area at 3 p.m. On October 13, Retzack telephoned Respondent Presi- dent Grimm and told him that he had reason to believe that Respondent was not complying with the terms of the contract concerning the manner in which he was compen- sating his employees, the operating engineers, and request- ed that the Union be given copies of the original payroll records, including timecards, or allowed to review these records as well as quarterly earnings statements and income tax forms, particularly for the month of September 1975. According to Retzack, Grimm stated he was too busy to be bothered with such things and further stated that he was not at all sure that the Union had the right to obtain such information. Retzack testified that he told Grimm that the Union had a legal right to such information in order to determine Respondent's compliance with the terms of the contract. Retzack wrote to Grimm that day, stating: This is to confirm our telephone conversation of October 13th in which we requested complete payroll data regarding your employed Operating Engineers for September, 1975. Respondent's counsel due to late filing . Under the circumstances, I have concluded I should accept the brief of Respondent's counsel. CUSTOM EXCAVATING, INC. 287 We offered to accept photocopies of the time cards and check ledgers or to review the original records in your office. You indicated that you were unable or unwilling to name a date on which we could make such a review for the purpose of evaluating your compliance with the current labor agreement. Please be advised that if we do not receive a prompt and satisfactory response to this request by November 15, 1975, we will give serious consideration to the filing of Unfair Labor Practice Charges with the National Labor Relations Board. On January 6, Retzack had another telephone conversa- tion with Grimm and related that he told Grimm that the Union "was running out of patience due to his failure to respond in any way to our request" for access to Respon- dent's payroll records and that the Union was prepared to file charges with the Board in the event Grimm was still unwilling to give the Union access. Grimm replied that he was no longer pressed for time and asked Retzack when he would like to look at the records for September 1975. Retzack suggested 10 o'clock the following morning, to which Grimm agreed. When they met, Grimm made available records for two employees, Thimke and one Thomas Wegner. Retzack reviewed the records and made some detailed notes as to the contents, particularly the breakdown of hours and the weekly accumulative results in hours and gross payroll for the weeks September 13, 20, and 27. After reviewing the payroll records, Retzack told Grimm that "the records are a patent fraud" and "demand- ed that he agree immediately to commence paying his employed operating engineers in accordance with the labor agreement rather than what appeared to be an individually negotiated arrangement." Retzack further testified that he asked Grimm for "a complete record of all payroll dates on the employed operating engineers for 1975," stating that he also wanted "a complete list of the customers during 1975 for whom he had done work which involved the operation of construction equipment because in the absence of a resolution of this preceived problem, it would be our intent to file a grievance and force him to comply with the terms of the contract." Retzack further testified that the Union "wanted the records of his customers and the work done for them for the specific purpose of proving the fraudulent nature of his time records." To this, Grimm replied that, so Retzack testified, he "had no detailed information with respect to the dates, times, places, and description of work done by individually employed operating engineers." On January 9, Retzack spoke to Donald Shrader, a former employee of Respondent, who stated that Respon- dent had not paid overtime and that he understood that the Union was pursuing a grievance with Respondent. On February 4, Retzack met with Dan Hill, a former operating engineer employed by Respondent, and asked him to explain how he was employed and paid. According to Retzack, Shrader told him that he had been paid straight time rather than time-and-a-half or double time for overtime hours, and, in addition he was required to submit two signed timecards, one in detail and the other blank. Hill gave a substantially similar account to Retzack. Both told him that they understood that the purpose of the blank timecard was to permit Respondent to reconstruct the hours so as to comply with the contract and the law. On February 25, Retzack wrote to counsel for Respon- dent, calling his attention to the fact that he had not received a response to his request for information made of Grimm verbally and confirmed by a letter on January 14. Retzack stated that if the Union did not receive the information in timely fashion it would feel compelled to file unfair labor practice charges with the Board. Counsel for Respondent replied on February 27, expressing surprise at receiving the Union's letter, noting that the Union had filed a grievance against Respondent stating that it had paid the appropriate amounts for wages and for fringe benefits and that the Union was "requesting the information which would have been the basis for the grievance which has already been filed," and inquiring whether it was the Union's "practice to shoot first and load the gun later?" Thereafter, the Union filed the present charge and` on March 19 requested that the arbitration be postponed indefinitely, a request which was granted by letter dated March 23. Retzack testified that the purpose of the Union's request for copies of billings, contracts, invoices, and other docu- ments containing information about the work done with construction equipment for Respondent during 1975 "was considered essential by the Union for the purpose of proving what we believed to be the patently fraudulent nature of the payroll records that are a product of a collusive relationship with two employees; namely, Thomas Wegner and Gerald Thimke, and . . . Ronald Grimm." He testified that, having such information, the Union would contact Respondent's customers to establish the dates, times, and places where unit employees of Respondent did work and then compare the data thus obtained with Respondent's payroll records which the Union believed were not accurate. B. Discussion and Conclusions It is the position of counsel for the General Counsel that the requested information is necessary in order that the Union may properly police the collective-bargaining agree- ment with respect to fringe benefit funds, hours of employ- ment, and wage rates and, further, in order that it may intelligently process the pending grievance filed on January 8. It appears that Respondent takes the position that its refusal to supply the information requested by the Union was in part based upon a contention that its customers do not have records which would aid the Union in determining the accuracy of Respondent's timecards and other payroll records and, further, that the Union's attempt to examine the records of Respondent's customers would be a form of harassment which could cause Respondent to lose business. Counsel for the General Counsel argues that the first defense "is totally irrelevant to this proceeding" because that defense "puts the cart before the horse." He suggests that inasmuch as Respondent has not provided the Union with a list of names and addresses of its excavating customers it cannot logically contend that such customers do not have the data sought by the Union. It is his position that it must first be established that the Union is entitled to 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the information and, upon receiving it, the Union will have to conduct its own investigation to determine whether the employers listed have the information to be used by the Union in its comparison with Respondent's payroll records. Thus, he asserts that the "sole and narrow issue in this case is whether the Union is entitled to the list of customers for whom Respondent performed excavating work during 1975." He contends that on the basis of decisions by the Board, the circuit courts of appeal, and the Supreme Court, Respondent is required to supply the requested information and that, by failing and refusing to do so, it has violated Section 8(a)(5) and (1) of the Act. Counsel for Respondent argues that if it supplied the information sought by the Union, it would subject its customers to harassment and would lose business. How- ever, it appears to me that this position is essentially speculative inasmuch as Retzack testified that the Union had not contacted any ofRespondent's excavating custom- ers. Moreover, it is customary practice for business agents of unions in the building and construction industry to appear at jobsites in order to police and enforce the contract and to attend prejob conferences where the identity of subcontractors and suppliers is made known. In addition, the Board has rejected claims of confidentiality in numerous cases .2 I am not persuaded by Respondent's argument that its customers would be harassed if a representative of the Union were to ask them for specific information. Nor do I believe it to be a defense that Respondent may lose business because its customers know of certain labor problems Respondent may have ; this is particularly true unless Respondent is able to show that the Union, as stated by counsel for the General Counsel, "has, in fact, harassed, libelled, slandered or otherwise made illegal statements" to customers of Respondent . Were that the case, which it is not, Respondent would have adequate remedies in civil court. Upon all the evidence, I am persuaded that Respondent refused to bargain in good faith with the Union by refusing to furnish it with the documentary evidence containing the names and addresses of Respondent's customers during 1975 for whom work was done with construction equip- ment, as well as the dates on which such work was performed for these customers . In my view, the requested information is at least potentially relevant and material in connection with the Union's January 8 grievance. More- over, the record contains no evidence that the Union will utilize the requested information for any other purpose. In these circumstances, I regard the suggestion of Respondent that its customers would be harassed or it would lose business as essentially speculative and unsubstantiated. I have not overlooked the fact that Respondent's payroll records are compiled by a certified public accountant for the purposes of paying Federal and state withholding taxes, and that the accounting firm has not found any discrepan- cies in these records. I also recognize that Respondent requires each employee to keep track of his own time and 2 See A 0 Smith Corporation, 223 NLRB 838 (1976), and a series of General Electric Company cases, 184 NLRB 407 (1970), 188 NLRB 911, 188 NLRB 919, 188 NLRB 920 (1971 ); and 192 NLRB 68 (1971 ), all of which were enforced by the Court of Appeals for the Sixth Circuit at 466 F .2d 1177 (1972). 3 In the event no exceptions are filed as provided by Sec. 102 46 of the that it would be entirely possible for the Union to utilize some independent third party to contact Respondent's customers in order to verify times and hours worked. However, I do not agree with counsel for Respondent that it is unreasonable for the Union to request the opportunity to make personal contact with Respondent 's customers concerning these matters, in view of the testimony of employees set forth above. While it is, of course, possible that some problems might be caused Respondent in its relations with its customers as a result of the Union contacting those customers, in my opinion that possibility is outweighed by the need of the Union to ascertain whether the terms of its collective-bargaining agreement are being complied with and, in addition, whether the provisions of applicable law are being observed. Therefore, I conclude that Respondent has violated Section 8(a)(5) and (1) of the Act in refusing to provide the requested information. Accordingly, I shall recommend that Respondent provide or make available to the Union the names and addresses of its customers during 1975 for whom work was performed with construction equipment, as well as the dates on which such work was performed for such customers. In addition, I shall recommend that Respondent post a notice to its employees. III. THE REMEDY It having been found that Respondent engaged in unfair labor practices in violation of Section 8(axl) and (5) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Specifically, it will be recommended that Respondent, upon request, make available to the Union the names and addresses of its customers during 1975 for whom work was performed with construction equipment, and the date such work was performed for said customers. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in these proceedings and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Respondent, Custom Excavating, Inc., Glendale, Wis- consin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to provide the Union with the names and addresses of its customers during 1975 for whom work was performed with construction equip- ment, and the dates such work was performed for said customers, or in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request, make available to the Union the names and addresses of its customers during 1975 for whom work 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 CUSTOM EXCAVATING, INC. 289 was performed with equipment, and the dates such work was performed for said customers. (b) Post at its premises in Glendale, Wisconsin, copies of the attached notice marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for Region 30, after being duly signed by a representative of Respon- dent, shall be posted by Respondent immediately upon receipt thereof, and be maintained 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 the Regional Director for Region 30, in wnting, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 4 In the event the Board's Order is enforced by a Judgment of the United Judgment of the United States Court of Appeals Enforcing an Order of the States Court of Appeals, the words in the notice reading "Posted by Order of National Labor Relations Board." the National Labor Relations Board" shall read "Posted Pursuant to a