Brisco Sheet Metal

361 307 NLRB No. 52 BRISCO SHEET METAL 1 As requested by the General Counsel in his exceptions, we cor- rect the second sentence of sec. III,A,3 (‘‘Pertinent Facts’’) of the judge’s decision to state that the Respondent was established in 1980 rather than in 1990. The General Counsel excepts to the judge’s finding that the infor- mation which the Respondent refused to furnish deals only with in- dividuals outside the bargaining unit. We agree that the judge’s ob- servation in the first sentence of par. 4, sec. III,B,1 of his decision is overbroad. In adopting the decision, we find simply that, insofar as the requested information which the Respondent has refused to furnish to the Union in the present case deals with individuals out- side the bargaining unit, the General Counsel has the burden of dem- onstrating the information’s relevance. The General Counsel excepts to the wording of the judge’s notice, contending that its reference to the ‘‘questionnaire published in Ap- pendix 1 to this decision’’ is confusing. We have substituted a new notice. 2 We find no merit in the Respondent’s argument that the Union withdrew its request for information by its March 29, 1990 letter stating that it had no problem delaying the processing of grievances. The letter did not state that the request for information was being withdrawn. Further, on May 14, 1990, the Union filed its 8(a)(5) charge alleging as unlawful the Respondent’s refusal to furnish in- formation, effectively eliminating any possible ambiguity in the Union’s March 29, 1990 letter. 1 A reasonable basis for believing only that American Eagle Fire- place had the same owners as Brisco and performed work of the same type would not suffice to make information about the Amer- ican Eagle employees relevant to the Union’s performance of its col- lective-bargaining responsibilities. See, e.g., United Constructors, 233 NLRB 904, 912–913 (1977). Brisco Sheet Metal, Inc. and Sheet Metal Workers’ International Association, Local Union No. 104. Case 20–CA–23372 April 30, 1992 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT On October 23, 1991, Administrative Law Judge Michael D. Stevenson issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed cross-exceptions, a supporting brief, and an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings,1 and con- clusions and to adopt the recommended Order. We agree with the judge that the Union is entitled to the requested information concerning the relation- ship between the Respondent and American Eagle Fireplace Co. regardless of whether the Respondent is bound to the current collective-bargaining agreement. We reject the Respondent’s contention that the Union, in its letter of March 15, 1990, limited its request for information to that required to enforce its collective- bargaining agreement. The letter accompanying the questionnaire read in pertinent part, ‘‘Local 104 must determine the necessity for grieving any violations of the Labor Agreements. Local 104 must also determine whether the issue of non-unions should be addressed elsewhere . . . .’’2 We find that the Union, the certified representative of Brisco Sheet Metal, Inc.’s employees as of Sep- tember 8, 1989, had a reasonable basis for believing that the Respondent was either diverting bargaining unit work to American Eagle Fireplace Co., or that American Eagle Fireplace Co. was in fact a possible alter ego. The Union was entitled to the requested in- formation to determine the nature of the relationship between the companies and to determine whether the Respondent was committing unfair labor practices by unilaterally changing the terms and conditions of em- ployment of its unit employees. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Brisco Sheet Metal, Inc., Cotati, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order ex- cept that the attached notice is substituted for that of the administrative law judge. CHAIRMAN STEPHENS, concurring. I agree with my colleagues that the Union is entitled to the requested information regardless of whether the Respondent is bound by the current collective-bar- gaining agreement. I also agree that the Union did not limit its request for information to that necessary to en- force the collective-bargaining agreement to which it claimed the Respondent was bound and that the Union did not withdraw its request for information. In concluding that the Union is entitled to the re- quested information, however, I rely on the fact that the Union, the certified collective-bargaining represent- ative of Brisco Sheet Metal, Inc.’s employees, had a reasonable objective basis for believing either that American Eagle Fireplace Co. might be an alter ego of Brisco Sheet Metal, Inc., or that the two might be a single employer with operations that properly com- prised a single bargaining unit. Having established this reasonable objective basis, the Union is entitled to the information necessary to establish whether its supposi- tions are true. Maben Energy Corp., 295 NLRB 149 (1989).1 If in fact there is an alter ego relationship, the Union then also represents employees of American Eagle Fireplace Co. See Ray C. Lapp Air Condi- tioning, 270 NLRB 641 (1984); Leonard B. Hebert, Jr., & Co., 259 NLRB 881, 884–885 (1981), enfd. 696 F.2d 1120 (5th Cir. 1983), cert. denied 464 U.S. 817 (1983); Associated General Contractors of California, 242 NLRB 891 fn. 5 (1979), enfd. as modified 633 362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The Union would thereby be seeking work preservation, as op- posed to work acquisition. 1 All dates herein refer to 1990 unless otherwise indicated. F.2d 766 (9th Cir. 1980), cert. denied 452 U.S. 915 (1981). Furthermore, if the work performed by the American Eagle employees is truly work that belongs within the same bargaining unit,2 the Union also—as the judge observed—has a duty to pursue the question of diverted bargaining unit work on behalf of the Brisco employees, if only in any future negotiations for a contract in that certified unit. I therefore find that the requested information is relevant and necessary to the Union’s performance of its duties as a collective- bargaining representative of the Brisco employees and possibly as a representative of the American Eagle Fireplace employees. APPENDIX II 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 violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT refuse to bargain collectively with Sheet Metal Workers’ International Association, Local Union No. 104 by refusing to supply it with answers to the Union’s March 15, 1990 questionnaire regarding the possible relationship of our Company to American Eagle Fireplace Co. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request of the Union, furnish to it the answers to the Union’s March 15, 1990 questionnaire regarding the possible relationship of our Company to American Eagle Fireplace Co. BRISCO SHEET METAL, INC. Paula R. Katz, Esq. and Sherri Hayes Sawyer, Esq., for the General Counsel. Mark D. Jordan, Esq. (Jordan & Ferrington), of Santa Rosa, California, for the Respondent. Kathryn A. Sure, Esq. (Wylie, McBride, Jesinger & Sure), of San Jose, California, for the Charging Party. DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law Judge. This case was tried before me at Santa Rosa, California, on April 23, 1991,1 pursuant to a complaint issued by the Regional Director for the National Labor Relations Board for Region 20 on June 28, and which is based upon a charge filed by Sheet Metal Workers’ International Association, Local Union No. 104 (the Union) on May 16. The complaint alleges that Brisco Sheet Metal, Inc. (Respondent) has engaged in certain violations of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). Issue Whether Respondent has unlawfully failed and refused to furnish the Union with certain information requested in a 14- page questionnaire which is alleged to be necessary for and relevant to, the Union’s performance of its function as the exclusive bargaining representative of the unit. All parties were given full opportunity to participate, to in- troduce relevant evidence, to examine and to cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. Upon the entire record of the case, and from my observa- tion of the witnesses and their demeanor, I make the fol- lowing FINDINGS OF FACT I. RESPONDENT’S BUSINESS Respondent admits that it is a California corporation en- gaged in the residential and commercial sheet metal con- tracting business with an office and place of business located in Cotati, California. Respondent further admits that during the calendar year ending December 31, 1989, Respondent, in the course and conduct of its business operations described above, derived gross revenues in excess of $500,000. It fur- ther admits that during the calendar year ending December 31, 1989, in the course and conduct of its business, Respond- ent has purchased and received at its California facility prod- ucts, goods, and materials valued in excess of $5000 which originated from points outside the State of California. Ac- cordingly it admits, and I find, that it is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that Sheet Metal Workers’ International Union, Local Union No. 104 is a labor organi- zation within the meaning of Section 2(5) of the Act. 363 BRISCO SHEET METAL 2 Apparently through inadvertence, the General Counsel assigned G.C. Exh. 5(f) both to Judge Jensen’s order and to the Union’s no- tice of appeal from that order. Inasmuch as this is not proper proce- dure and because the Union’s notice of appeal has been admitted into evidence as R. Exh. 20, infra, I admit into evidence only the order as G.C. Exh. 5(f). 3 Since Respondent inadvertently neglected to assign an exhibit number to the notice of appeal, I have assigned the next in order. 4 Still additional collateral litigation between Respondent and SMACNA is apparently ongoing in the state courts of Sonoma County (Tr. 221, 324). The exact issue in and status of that case does not appear in this record. III. THE ALLEGED UNFAIR LABOR PRACTICE A. The Facts 1. Procedural matters When the hearing ended on April 23, 1991, I allowed the record to remain open so the parties could move to admit certain additional exhibits into evidence at a later time. Pur- suant to that arrangement, the General Counsel has submitted two separate motions for submission of late exhibits which I herewith grant. The first, dated June 21, 1991, moves into evidence General Counsel’s Exhibit 5(e), Union’s Memo- randum of Points and Authorities in Opposition to Motion for Reconsideration, dated May 8, 1991, and Union’s Exhibit 1, Union’s letter, dated April 10, 1991, drafted in response to Respondent’s Exhibit 12. The General Counsel’s second motion, dated August 27, 1991, moves into evidence General Counsel’s Exhibit 4(a), a collective-bargaining agreement, also called Standard Form Union Agreement (SFUA Form A-3-89) and addenda, between Employer’s Association Red- wood Empire Sheet Metal and Air Conditioning Contractors’ Association, Inc. (SMACNA), and the Charging Party, effec- tive between July 1, 1989, and June 30, 1992, and General Counsel’s Exhibit 5(f), an order of U.S. District Judge D. Lowell Jensen, dated May 29, 1991.2 Respondent, too, has submitted a motion for submission of late exhibit which I herewith grant. This motion, dated June 28, 1991, moves into evidence as Respondent’s Exhibit 203 the Union’s notice of appeal, dated June 19, 1991, from Judge Jensen’s order (G.C. Exh. 5(f)). I now formally close the record of this proceeding and turn to the facts and circumstances surrounding this case. 2. Background As the late exhibits indicate, the Union and Respondent are engaged in collateral litigation in the Federal courts. Cur- rently, the litigation has moved from the district court to the court of appeals. In this litigation, the Union is attempting to enforce a prior arbitration award against Respondent (G.C. Ex. 5(c)).4 A central issue concerns the question whether Re- spondent is bound to SFUA, Form A-3-89 (G.C. Exh. 4(a)) and if so, what the proper scope of SFUA, Form A-3-89 is. In its initial order of March 20, 1991 (G.C. Exhs. 5(a), (b)), the court ruled in favor of petitioner Union. Respondent then filed a motion for reconsideration (G.C. Exh. 5(d)). The Union filed its memorandum of points and authorities in op- position (G.C. Exh. 5(e)). On May 28, 1991, Judge Jensen granted in part, Respondent’s motion for reconsideration (G.C. Exh. 5(f)). Currently, the Union is appealing from the court’s May 28 order (R. Exh. 20). In order to decide the issue presented in the instant case, it will not be necessary to decide whether Respondent is bound to SFUA, Form A- 3-89, nor whether Respondent is or was a member of SMACNA, and if so, whether any purported withdrawal from SMACNA was untimely under Board law. Instead, there is an alternative method of analyzing this case, to be detailed below in the analysis and conclusion section of this decision, which will yield a proper decision on the narrow issue presented. 3. Pertinent facts Respondent witness David Brisco is president, general manager, and co-owner of Respondent with his wife Letitia. Begun in January 1980 as a sole proprietorship, Respondent was incorporated in 1983. Brisco testified that in 1981, he personally negotiated with a representative of the Union, the first in a series of collective-bargaining agreements (R. Exh. 1). Other agreements followed, for the most part, at 3-year intervals (R. Exh. 2). Although Brisco testified he was not a member of SMACNA, he generally adopted their agree- ments negotiated with the Union. For the period of 1986 through 1989, this same pattern prevailed and all parties agree that Respondent was bound to a collective-bargaining agreement which expired on June 30, 1989, SFUA (Form A- 3-86) (G.C. Exhs. 3(a), (b), and (c); R. Exh. 10). Unlike past agreements where Brisco represented himself in negotiations with union representatives, this labor agreement was nego- tiated by Respondent’s attorney, Mark Jordan. Again Brisco testified he was not, as of the date Jordan signed this agree- ment, a member of SMACNA. On March 27, 1989, Attorney Jordan sent the first of three letters to the Union and/or union counsel which deserve reci- tation in this decision. The letters, read as follows: March 27, 1989 Sheet Metal Workers International Association, Local Union #104 1939 Market Street San Francisco, CA 94l03 Re: Brisco Sheet Metal, Rohnert Park, California Dear Sir: Please be advised that the above-referenced employer is represented by our firm in all manners pertaining to labor relations. Please accept this letter as notice pursuant to Item 41, Termination and Item Renegotiations of the most recent Collective Bargaining Agreement that it is the intention of the above-referenced employer that its Col- lective Bargaining Agreement end June 30, 1989. Be further assured that this employer will discharge any collective bargaining obligation which may be re- quired of it by any Federal statute, or rules and regula- tions. Any such bargaining will be discharged by the individual employer as a single employer not part of any multi-employer group. By copy of this letter to the Redwood Empire Chapter, Sheet Metal and Air Condi- tioning Contractors National Association, the individual employer is hereby withdrawing any authorization that Chapter may have had to represent it in any negotia- tions. 364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Any communications concerning this employer should be addressed to our firm, attention the under- signed. Sincerely, JORDAN & SMITH /s/ Mark D. Jordan [R. Exh. 12.] April 24, 1989 Sheet Metal & Air Conditioning Contractors Redwood Empire Chapter 4340 Old Redwood Highway, Suite 108 San Rafael, CA 94903 Attn: Jerry Griffin, Executive Manager Kathryn A. Sure Wilie [sic], McBride, Jesinger & Sure 101 Park Center Plaza, Suite 1001 Bank of America Building Market and Park Avenue San Jose, CA 95115 Sheet Metal Workers International Association, Local Union #104 1939 Market Street San Francisco, CA 94103 RE: BRISCO SHEET METAL OUR FILE NO. 1016 Dear Ms. Sure & Gentlemen: Please be advised that our firm continues the func- tion as the authorized representative of Brisco Sheet Metal in all matters pertaining to labor relations. After sending a letter dated March 27, 1989 wherein Brisco Sheet Metal timely terminated its Collective Bargaining Agreement with Sheet Metal Union Local 104, our firm received a letter from Ms. Sure advising that Mr. Brisco was part of SMACNA and could not bargain as an individual employer. All parties by this letter our [sic] advised that Mr. Brisco at his last negotiation session was represented by our firm and executed all documents as a single em- ployer, not part of any multi-employer group. During the course of negotiations by the Union’s representative Mr. Roger Burk and by letter from the Union’s then counsel, it was agreed between all parties that any ref- erences to SMACNA were not binding upon Brisco Sheet Metal. As Brisco Sheet Metal did last time, it will discharge its duties as a single employer. After being advised this [sic] if the Union, or SMACNA, in any way still feels that it represents Brisco Sheet Metal, please advise the undersigned im- mediately. It is Brisco Sheet Metal’s understanding that negotiations have not yet commenced and that neither side has in any way been prejudiced. Sincerely, MARK D. JORDAN, ESQ. [R. Exh. 13.] May 23, 1989 MR. ROBERT MAMMINI Business Manager SHEET METAL WORKERS Local Union No. 104 1939 Market Street San Francisco, CA 94103 Re: BRISCO SHEET METAL Our File No. 1016 Dear Mr. Mammini: In response to your letter addressed to Brisco Sheet Metal dated May 11, 1989, please be advised of the fol- lowing. Our firm continues to function as the authorized rep- resentative of Brisco Sheet Metal in all matters per- taining to labor relations. You have previously been ad- vised this [sic] and are again reminded that all commu- nications concerning your Union and Brisco Sheet Metal should be addressed to this firm, attention the un- dersigned. In terms of your request that we enter into a vol- untary recognition agreement, please be advised that it is Mr. Brisco’s desire that the employees be allowed an opportunity to exercise their Section 7 rights in an NLRB election. When you file the appropriate petition with Region 20 of the NLRB, please advise the Board that I am the employer’s representative. Lastly, it is my understanding that while Brisco Sheet Metal still asserts, as all parties have been ad- vised, that it is not represented by the Redwood Empire Chapter of Sheet Metal and Air Conditioning Contrac- tors, it was my understanding that the organization has also advised you that Brisco Sheet Metal will not vol- untarily recognize your Union but feels their employees are better protected by having an opportunity to vote in an NLRB secret ballot election. If you have any questions or wish to discuss this, please do not hesitate to call. Sincerely, /s/ Mark D. Jordan/tb MARK D. JORDAN [R. Exh. 14.] Meanwhile, in the summer of 1989, Respondent filed an ‘‘RM’’ petition and on September 8, 1989, the Regional Di- rector for Region 20 issued a Certification of Representative in Case 20–RM–2721, titled ‘‘Brisco Sheet Metal, Inc., Em- ployer and Petitioner and Sheet Metal Workers’ International Association, Local Union No. 104, Union.’’ In pertinent part, the document reads as follows: An election has been conducted under the Board’s Rules and Regulations. The Tally of Ballots shows that a collective-bargaining representative has been selected. No timely objections have been filed. 365 BRISCO SHEET METAL 5 ‘‘Double-breasted’’ describes a contractor who operates two com- panies, one unionized and the other open shop. Watt Electric, 273 NLRB 655, 657 fn. 11 (1984). As authorized by the National Labor Relations Board, it is certified that a majority of the valid ballots have been cast for SHEET METAL WORKERS’ INTERNATIONAL ASSOCIATION, LOCAL UNION NO. 104 and that it is the exclusive collective-bar- gaining representative of the employees in the fol- lowing appropriate unit. UNIT: All full-time and regular part-time journey- men, apprentices, pre-apprentices, air conditioning specs, service techs and material expediters employed by the Employer at its Cotati, California facility; ex- cluding all other employees, guards and supervisors as defined in the Act. [G.C. Exh. 2.] As a result of certain information uncovered by the Gen- eral Counsel’s witness David Browning, a business represent- ative for the Union and former employee in the sheet metal trade between 1967 through 1988, Browning filed with Re- spondent a step one grievance. This document reads as fol- lows: September 7, 1989 Brisco Sheet Metal P.O. Box 1626 Rohnert Park, CA 94928 Attn: Dave Brisco Dear Dave, This communication serves as notice that SMWIA Local #104 and Brisco Sheet Metal are in Step One (1) of the Grievance Procedure as per Article X, Section One (1) of SFUA (A-3-89). You are hereby notified that I am agreeable to meet with you to discuss matters of concern so as to reach an amicable settlement in regard to what I believe are violations of contract language as follows: SFUA (A-3-89) Addendum One, Item 39, Sections C, D, and E Sincerely, /s/ Dave Browning Dave Browning Business Representative SMWIA Local 104 [G.C. Exh. 6.] Generally speaking, Browning believed Respondent to be in violation of pertinent contract language prohibiting ‘‘branch shops, or a double-breasted situation,’’ nonbargaining unit employees performing unit work (Tr. 65).5 On October 13, 1989, after the step-one grievance did not resolve the issue, Browning requested in writing the services of a Local Joint Adjustment Board, as provided for by the 1986 collective-bargaining agreement (G.C. Exhs. 7(a), (b)). Browning testified, however, that the written request for the Joint Adjustment Board contained certain typographical er- rors: Wherever SFUA (A-3-86) is typed as a reference to the applicable collective-bargaining agreement, the correct ref- erence should have been to SFUA (A-3-89), because, accord- ing to Browning, as of October 13, 1989, the Union had re- ceived an interest arbitration award (Tr. 68). (It is that award which is the subject of collateral litigation in Federal court.) On or about March 15, Browning sent a letter to Respond- ent which reads as follows: SMWIA Local 104 is currently investigating the ex- tent to which union companies in its industry may be operating non-union in violation of the collective bar- gaining agreement. We are aware of an increasing prac- tice amoung [sic] Union companies, their officers or other principals to operate non-union companies to per- form work that would otherwise be done by Union companies. These non-union operations erode bargaining units and endanger the financial integrity of fringe benefits funds. They jeopardize the competitiveness of Union companies generally and threaten Union members jobs. These non-union operations violate several provisions in Articles I, II, III, IV, V and Item 39 of Addenda I of SMWIA Local 104’s Labor Agreement. Local 104 must determine the necessity for grieving any violations of the Labor Agreements. Local 104 must also deter- mine whether the issue of non-unions should be ad- dressed elsewhere. It has come to our attention that your company is op- erating such a non-union company known as American Eagle Fireplaces Company Inc. As part of our inves- tigation of this matter, we are contacting you directly for pertinent information. We require that you supply us with information concerning your company’s relation- ship with the non-union company. Please respond to the attached questionaire [sic] di- rected at the time period of the most recent Labor Agreement July 1, 1989 to June 30, 1992. If you are unable to furnish some of the information requested, please provide all information that you can and state under oath that you cannot furnish the rest. To determine the appropriateness of a grievance, we require a response within two weeks of the date of this letter. [G.C. Exh. 8(a).] Attached to this letter was a 14-page questionnaire which Browning wanted Brisco to answer (G.C. Exh. 8(b)). (This document, alleged at par. 9 of the complaint to call for infor- mation which Respondent was required to provide, is at- tached to this decision as Appendix I.) Instead of answering the questionnaire, Brisco sent a short letter to Browning, which reads as follows: In as much as Brisco Sheet Metal, Inc. is not pres- ently signatory to SFUA (A-3-89), and as such is not compelled to adhere to requests to honor said agree- ments, please refrain from communications that refer or allude to such agreement. If, however, you desire to begin negotiations towards possible acceptance of SFUA (A-3-89), I would be more than pleased to accommodate. 366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD [G.C. Exh. 9.] Brisco’s letter was followed a few days later by a letter from Respondent’s attorney, Hugh Helm, to Union Attorney Sure, complaining about direct contacts between the Union and Respondent while the Federal court litigation was ongo- ing. The letter threatened the Union with a motion for sanc- tions before Judge Jensen, if any further contact was made without going through Respondent’s attorney first (G.C. Exh. 10). The Union’s attorney replied to the above letter on March 29, complaining that Respondent was attempting to impede the Union from representing employees pursuant to the Board’s certification and threatening to file unfair labor prac- tices if Respondent did not cease its actions (G.C. Exh. 11). B. Analysis and Conclusions 1. General principles of applicable law I begin with the fact that as of September 8, 1989, the Union is the certified collective-bargaining representative of Respondent’s employees (G.C. Exh. 2). Because of that sta- tus, I find that Respondent generally has an obligation, inde- pendent of any collective-bargaining agreement between the parties, to furnish to the Union any requested relevant infor- mation which it possesses. American Standard, 203 NLRB 1132 (1973); W-L Molding Co., 272 NLRB 1239, 1241 (1984); cf. Bozzuto’s, Inc., 275 NLRB 353 (1985). In U.S. Abatement, 303 NLRB 451 (1991), the Board ap- proved the following statement of law taken from W-L Mold- ing Co., supra, 272 NLRB at 1240: [A] broad discovery-type standard is applicable to re- quests for information relevant to a union’s functions of negotiating and policing compliance with a collective- bargaining agreement. NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967); General Motors v. NLRB, 700 F.2d 1083, 1088 (6th Cir. 1983); NLRB v. Rock- well-Standard Corp., 410 F.2d 953, 957 (6th Cir. 1969). ‘‘[I]t is not the Board’s function in this type case to pass on the merits of the Union’s claim that Re- spondent breached the collective-bargaining agreement or . . . committed an unfair labor practice.’’ NLRB v. Rockwell-Standard Corp., 410 F.2d at 957. ‘‘Thus, the Union need not demonstrate actual instances of contrac- tual violations before the employer must supply infor- mation.’’ Boyers Construction Co., 267 NLRB 227, 229 (1983). ‘‘Nor must the bargaining agent show that the information which triggered its request is accurate, non- hearsay, or even ultimately reliable.’’ Ibid. ‘‘The Board’s only function in such situation is in acting upon the probability that the desired information was relevant, and that it would be of use to the union in carrying out its statutory duties and responsibilities.’’ NLRB v. Rockwell-Standard Corp., 410 F.2d at 957, quoting NLRB v. Acme Industrial Co., 385 U.S. at 437. Accord: General Motors v. NLRB, 700 F.2d at 1088. [Fn. omitted.] See also Parsons Electric Co., 304 NLRB 890 (1991). Still additional guidance is provided by the case of Postal Service, 303 NLRB 502 (1991), where the administrative law judge quoted from Sheraton Hartford Hotel, 289 NLRB 463 (1988): Section 8(a)(5) obligates an employer to provide a union requested information if there is a probability that the information would be relevant to the union in ful- filling its statutory duties as bargaining representative. Where the requested information concerns wage rates, job descriptions, and other information pertaining to employees within the bargaining unit, the information is presumptively relevant. Where the information does not concern matters pertaining to the bargaining unit, the union must show that the information is relevant. When the requested information does not pertain to matters related to the bargaining unit, to satisfy the burden of showing relevance, the union must offer more than mere suspicion for it to be entitled to the information. The requested information which Respondent has refused to furnish to the Union in the present case deals with individ- uals outside of the bargaining unit and therefore the General Counsel has the burden of demonstrating the information’s relevance. Pfizer, Inc., 268 NLRB 916, 918 (1984), enfd. 763 F.2d 887 (7th Cir. 1985). Bohemia, Inc., 272 NLRB 1128 (1984). The duty to disclose information concerning nonunit em- ployees will be triggered by a showing that the requesting party has a reasonable basis for requesting the information. NLRB v. Leonard B. Herbert, Jr. & Co., 696 F.2d 1120 (5th Cir. 1983); Blue Diamond Co., 295 NLRB 1007 (1989). What constitutes a reasonable basis for further investigation depends on the particular facts of each case; however, it is clear that a union is not required to assemble a prima facie case. See San Diego Newspaper Guild Local 95 v. NLRB, 548 F.2d 863, 867–868 (9th Cir. 1977); Curtiss-Wright Corp. v. NLRB, 347 F.2d 61, 67 (3d Cir. 1965). To the contrary, a union need garner only sufficient evidence to make its in- formation request ‘‘reasonably calculated to lead to the dis- covery of admissible evidence.’’ NLRB v. Associated Gen- eral Contractors of California, 633 F.2d 766, 771 fn. 6 (9th Cir. 1980). See also NLRB v. Acme Industrial Co., 385 U.S. 432, 433 (1967). In his testimony, which I found credible, Browning testi- fied that based on certain facts which I will detail below, he believed Respondent was in violation of pertinent contract language prohibiting branch shops, double-breasted situa- tions, nonbargaining unit employees performing bargaining unit work. In George Koch Sons, Inc., 295 NLRB 695 fn. 1 (1989), the Board found that the union had an objective factual basis for believing that the respondent was subcon- tracting unit work to another company as part of a double- breasted operation and that the respondent violated the Act by failing to provide the union with requested information at all or in a timely manner. See also Maben Energy Corp., 295 NLRB 149 (1989), where the Board found that where a union seeks information to establish an alter ego or single employer relationship, the union is not required to prove the existence of such a relationship. Rather it is sufficient that the General Counsel has established that the union had an objective factual basis for believing that one entity is an ‘‘alter ego’’ or single employer of the other, Id.; Arch of West Virginia, Inc., 304 NLRB 1089 (1991) 367 BRISCO SHEET METAL Finally in Z-Bro, Inc., 300 NLRB 87 (1990), enfd. mem. (8th Cir. 1991), the Board found a violation where two com- panies, one union and the other nonunion, operated out of the same building, had the same corporate officers and several employees in common. All of this gave rise to a reasonable suspicion that the respondent might be evading the require- ments of the collective-bargaining agreement by transferring work to its nonunion affiliate. See also Walter N. Yoder & Sons, 754 F.2d 531, 535 (4th Cir. 1985); Electrical Energy Services, 288 NLRB 925 (1988), enfd. mem. (10th Cir. 1990). 2. The Union’s reasonable basis I find that through the testimony of Browning, the General Counsel has established that the Union had a reasonable basis for requesting the information in question and for be- lieving that Respondent may have been violating the con- tract. The evidence presented concerned the relationship be- tween Respondent, a union shop, and American Eagle Fire- place Co., a nonunion shop. Prior to March 15, the date of the questionnaire, the Union became aware that Brisco owned both companies and that American Eagle Fireplace Co. was performing fireplace installation work (Tr. 92). Not only did Brisco own both businesses,—American Eagle Fire- place Co. was co-owned with his wife—but in addition, Brisco owned the properties on which both businesses are now located, and said properties are only 50 yards apart. Fi- nally, Brisco held state contractors’ licenses for both compa- nies. Browning first became aware of American Eagle Fireplace Co. in August 1989. During this time, Browning had re- ceived one or more reports from a Respondent bargaining unit employee that a nonbargaining unit employee had been doing bargaining unit work at a certain real estate develop- ment. Browning observed the nonbargaining unit employee in question, whom Browning later learned worked for Amer- ican Eagle Fireplace Co., loading materials onto a truck owned by Respondent. Browning also observed the same in- dividual trimming a fireplace at a real estate development and this was bargaining unit work. In September 1989, Browning went to Respondent’s place of business on an unrelated matter. While there, Browning observed, in plain view, certain work orders for American Eagle Fireplace Co. to perform work at three real estate de- velopments where Respondent had a contract to perform heating, air conditioning, and related work. In October 1989, Respondent went to an address in Rohnert Park, California, listed for America Eagle Fireplace Co., where he observed in suite 4 metal fireplace chimneys and fireplace boxes. In an adjoining suite, Browning ob- served heating, ventilation and air conditioning ducts, and a forklift. Because the ducts have nothing to do with the instal- lation of fireplaces, Browning concluded that American Eagle Fireplace Co. was apparently performing bargaining unit work. In its brief, page 7, Respondent states it ‘‘is not arguing whether or not the union had reasonable belief that the em- ployer had violated a collective-bargaining agreement. This is simply because there has been no allegation in the complaint, nor is it the position of the General Counsel, that the issue of the existence of a collective-bargaining agreement needs to be decided.’’ It is not clear what Respondent means by this statement, or if it is conceding the existence of the Union’s reasonable basis for requesting the information in issue. I find, in any event, that the General Counsel has satis- fied its burden and the Union’s, irrespective of whether Re- spondent is bound to the current collective-bargaining agree- ment. I note that Respondent’s additional contention, brief page 7, that the Union’s request for information is overbroad, must be rejected. In Holiday Inn Coliseum, 303 NLRB 367–368 fn. 6 (1991), the Board stated: [A] an employer may not simply refuse to comply with an ambiguous or overbroad information request, but must request clarification and/or comply with the re- quest to the extent it encompasses necessary and rel- evant information. See, e.g., A-Plus Roofing, 295 NLRB 967 (1989) [p. 11 of J.D.] fn. 7. See also Keauhou Beach Hotel, 298 NLRB 702 (1990). In conclusion, I find that it is unnecessary to cover the questionnaire point by point as I have found the information requested is relevant. Electrical Energy Services, supra, 288 NLRB at 922. Respondent’s failure to furnish the informa- tion in question to the Union violated the Act and I so find. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Sheet Metal Workers’ International Association, Local Union No. 104 is a labor organization within the meaning of Section 2(5) of the Act. 3. The bargaining unit described below is an appropriate unit for collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time journeymen, ap- prentices, pre-apprentices, air conditioning specs, serv- ice techs and material expediters employed by the Em- ployer at its Cotati, California facility; excluding all other employees, guards and supervisors as defined in the Act. 4. By failing and refusing to provide the Union with the information requested in the questionnaire contained in Ap- pendix I to this decision, since on or about March 19, Re- spondent unlawfully refused, and is refusing to bargain in violation of Section 8(a)(5) and (1) of the Act. 5. The above unfair labor practices affect commerce within the meaning of the Act. THE REMEDY Having found Respondent engaged in an unfair labor prac- tice, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The order will require Respondent to furnish the Union with answers to the questionnaire published in Appendix I to this decision. 368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 7 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 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.’’ On these findings of fact and conclusions of law and on the entire record, I issue the following recommended6 ORDER The Respondent, Brisco Sheet Metal, Inc., Cotati, Cali- fornia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively and in good faith with Sheet Metal Workers’ International Association, Local Union No. 104, by refusing to provide the Union with answers to the questionnaire published in Appendix I to this decision. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) On request of Sheet Metal Workers’ International As- sociation, Local Union No. 104, furnish to it within a reason- able time, the answers to the questionnaire published in Ap- pendix I to this decision. (b) Post at its facilities at Cotati, California, copies of the attached notice marked ‘‘Appendix II.’’7 Copies of the no- tice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent’s authorized rep- resentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in con- spicuous places including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX I QUESTIONNAIRE 1. Describe the type of business in which your company engages. Describe the type of business in which the non-union com- pany engages. 2. Define the geographic area in which your company does business. Define the geographic area in which the non-union com- pany does business. 3. State the business address(es) and identify all office lo- cations of your company. State the business address(es) and identify all office loca- tions of the non-union company. 4. Identify your company’s post office box(es) by number and location. Identify the non-union company’s post office box(es) by number and location. 5. Identify your company’s business phone number(s) and directory listing(s). Identify the non-union company’s business phone num- ber(s) and directory listing(s). 6. Identify the banking institution, branch location, and ac- count number of your company’s bank account(s). Identify the banking institution, branch location, and ac- count number of the non-union company’s bank account(s). 7. Identify the banking institution, branch location, and ac- count number of your company’s payroll account(s) not iden- tified above. Identify the banking institution, branch location, and ac- count number of the non-union company’s payroll account(s) not identified above. 8. Identify where and by whom your company’s account- ing records are kept. Identify where and by whom the non-union company’s ac- counting records are kept. 9. Identify your company’s principal accountant. Identify the non-union company’s principal accountant. 10. Identify where and by whom your company’s cor- porate records are kept. Identify where and by whom the non-union company’s corporation records are kept. 11. Identify where and by whom your company’s other business record books are kept. Identify where and by whom the non-union company’s other business record books are kept. 12. Identify your company’s principal bookkeeper. Identify the non-union company’s principal bookkeeper. 13. Identify your company’s principal payroll preparer. Identify the non-union company’s principal payroll pre- parer. 14. Identify your company’s contractor license number for states where it does construction business. Identify the non-union company’s contractor license num- ber for states where it does construction business. 15. Identify the carrier and policy number for your com- pany’s workers compensation insurance. Identify the carrier and policy number for the non-union company’s workers compensation insurance. 16. Identify the carrier and policy number for your com- pany’s other health insurance program(s). Identify the carrier and policy number for the non-union company’s other health insurance program(s). 17(a) Identify your company’s federal tax payer identifica- tion number. Identify the non-union company’s federal tax payer identi- fication number. (b) Identify where and by whom your company’s federal tax returns are kept. Identify where and by whom the non-union company’s federal tax returns are kept. 18(a) Identify your company’s other federal or state tax- payer identification numbers. Identify the non-union company’s other federal or state taxpayer identification numbers. 18(b) Identify where and by whom your company’s other federal or state tax reports are kept. 369 BRISCO SHEET METAL Identify where and by whom the non-union company’s other federal or state tax reports are kept. 19. Identify amount(s) involved, reason(s) for, and date(s) of transfer of any funds between your company and the non- union company. 20. Identify source(s) and amount(s) of your company’s line(s) of credit. Identify source(s) and amount(s) of the non-union com- pany’s line(s) of credit. 21. Identify amount(s) involved and date(s) when your company has operated its capital with a guarantee of per- formance by the non-union company. Identify amount(s) involved and date(s) when the non- union company has operated its capital with a guarantee of performance by your company. 22. Identify business(es) to whom your company rents, leases, or otherwise provides office space. Identify business(es) to whom the non-union company rents, leases, or otherwise provides office space. 23. Identify the calendar period and terms by which your company provides office space to the non-union company, or is provided with office space by the non-union company. 24. Identify your company’s building and or office sup- pliers. Identify the non-union company’s building and or office suppliers. 25. Identify by item(s) purchased, date(s) of purchase, and dollar volume of purchase(s) those building and or office supplies not purchased separately by your company and the non-union company. 26. Identify business(es) that use your company’s (a) tools or (b) equipment. Identify business(es) that use the non-union company’s (a) tools or (b) equipment. 27. Identify business(es) to whom your company sells, rents, or leases its (a) operating equipment, (b) office equip- ment, (c) construction equipment, or (d) tools. Identify business(es) to whom the non-union company sells, rents, or leases its (a) operating equipment, (b) office equipment, (c) construction equipment, or (d) tools. 28. Identify business(es) from whom your company buys, rents, or leases its equipment. Identify business(es) from whom the non-union company buys, rents, or leases its equipment. 29. Identify those equipment transactions that your com- pany arranges by written agreement. Identify those equipment transactions that the non-union company arranges by written agreement. 30. Regarding equipment transactions between your com- pany and the non-union company, identify the purchase, rent- al, or lease rate, equipment involved, calendar period, and dollar volume of each transaction. 31. Regarding equipment transactions between your com- pany and business(es) separate from the non-union company, identify the purchase, rental, or lease rate, equipment in- volved, calendar period, and dollar volume of each trans- action. 32. Regarding equipment transactions between the non- union company and business(es) separate from your com- pany, identify the purchase, rental, or lease rate, equipment involved, calendar period, and dollar volume of each trans- action. 33. Identify those of the following services that are pro- vided to the non-union company by or at your company. (a) administrative (b) bookkeeping (c) clerical (d) detailing (e) drafting (f) engineering (g) estimating (h) managerial (i) patternmaking (j) sketching (k) other 34. Identify those of the following services that are pro- vided to your company by or at the non-union company. (a) administrative (b) bookkeeping (c) clerical (d) detailing (e) drafting (f) engineering (g) estimating (h) managerial (i) patternmaking (j) sketching (k) other 35. Identify where your company advertises for customer business. Identify where the non-union company advertises for cus- tomer business. 36. Identify your company’s customers. Identify the non-union company’s customers. 37. Identify customers your company has referred to the non-union company. Identify customers the non-union company has referred to your company. 38. What customers of the non-union company are now or were formerly customers for your company. 39. Regarding customers identified above as common to your company and the non-union company, state the calendar period and dollar volume of work performed for the cus- tomer by your company. Regarding customers identified above as common to your company and the non-union company, state the calendar pe- riod and dollar volume of work performed for the customer by the non-union company. 40. State the dollar volume of business per job performed by your company. State the dollar volume of business per job performed by the non-union company. 41. Does your company negotiate jobs to obtain work? Does the non-union company negotiate jobs to obtain work? 42. Does your company bid jobs to obtain work? Does the non-union company bid jobs to obtain work? 43. Identify those persons who bid and or negotiate your company’s work. Identify those persons who bid and or negotiate the non- union company’s work. 370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 44. State the dollar volume minimum and or maximum (if any) as established by law or regulation, that your company may bid on public works projects. State the dollar volume minimum and or maximum (if any) as established by law or regulations, that the non-union company may bid on public works projects. 45. Identify by customer, calendar period, and dollar vol- ume any job(s) on which your company and the non-union company have bid competitively. 46. Identify by customer, calendar period, and dollar vol- ume any work which your company has subcontracted to, or received by subcontract from the non-union company. 47. Identify subcontract work arranged by written agree- ment between your company and the non-union company. 48. State the reason for each subcontract let by your com- pany. State the reason for each subcontract let by the non-union company. 49. Identify by customer, calendar period, and dollar vol- ume any projects on which your company has succeeded, or been succeeded by, the non-union company. 50. Identify work your company performs on the non- union company’s products. Identify work the non-union company performs on your company’s products. 51. Identify where your company advertises for employee hires. Identify where the non-union company advertises for em- ployee hires. 52. Identify by job title or craft position the number of employees employed by your company per pay period. Identify by job title or craft position the number of em- ployees employed by the non-union company per pay period. 53. Identify the skills that your company’s employees pos- sess. Identify the skills that the non-union company’s employees possess. 54. Identify where your company’s employees report for work. Identify where the non-union company’s employees report for work. 55. Identify by job title or craft position and respective employment dates those employees of your company who are or have been employees at the non-union company. 56. Identify by job title or craft position and respective employment dates those employees of the non-union com- pany who are or have been employees at your company. 57. Identify by job title or craft position and transfer dates those employees otherwise transferred between your com- pany and the non-union company. 58. Identify projects of each company on which these em- ployees were working at the time of transfer. 59. Identify your company’s (a) supervisors, (b) job super- intendents, and (c) forepersons or other supervisory persons with authority to hire, transfer, suspend, lay off, recall, pro- mote, discharge, assign, reward, or discipline other employ- ees, or responsible to direct employees, or to adjust their grievances, or effectively to recommend such action. Identify the non-union company’s (a) supervisors, (b) job superintendents, and (c) forepersons or other supervisory per- sons with authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other em- ployees, or responsible to direct employees, or to adjust their grievances, or effectively to recommend such action. 60. Regarding those supervisory persons described above as common to your company and the non-union company, identify the period(s) of employment with each company. 61. Identify your company’s personnel ever authorized to supervise the non-union company’s employees. Identify the non-union company’s personnel ever author- ized to supervise your company’s employees. 62. Identify by project involved, personnel involved, and date of event, any occasion when your company’s personnel performed a supervisory function for the non-union company. Identify by project involved, personnel involved, and date of event, any occasion when the non-union company’s per- sonnel performed a supervisory function for your company. 63. Identify your company’s managerial personnel having authority to formulate and effectuate management policies or otherwise able to recommend or to exercise discretionary ac- tion within or even independently of established policy. Identify the non-union company’s managerial personnel having authority to formulate and effectuate management policies or otherwise able to recommend or to exercise dis- cretionary action within or even independently of established policy. 64. Identify your company’s representatives who have au- thority to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward or discipline supervisory personnel, or responsible to direct supervisory personnel, or to adjust their grievances, or effectively to recommend such action. Identify the non-union company’s representatives who have authority to hire, transfer, suspend, lay off, recall, pro- mote, discharge, assign, reward or discipline supervisory per- sonnel, or responsible to direct supervisory personnel, or to adjust their grievances, or effectively to recommend such ac- tion. 65. Identify your company’s representatives otherwise ac- tively involved with day-to-day management or operations. Identify the non-union company’s representatives other- wise actively involved with day-to-day management or oper- ations. 66. Identify by title and respective dates of employment those managerial personnel of your company ever employed by the non-union company. Identify by title and respective dates of employment those managerial personnel of the non-union company ever em- ployed by your company. 67. Describe your company’s compensation program in- cluding employee wage rates. Describe the non-union company’s compensation program including employee wage rates. 68. Describe your company’s fringe benefits program. Describe the non-union company’s fringe benefits pro- gram. 69. Describe your company’s labor relations policy. Describe the non-union company’s labor relations policy. 70. Identify your company’s representative(s) who estab- lish or otherwise control labor relations policy. Identify the non-union company’s representative(s) who establish or otherwise control labor relations policy. 71. Identify your company’s labor relations representa- tive(s). 371 BRISCO SHEET METAL Identify the non-union company’s labor relations rep- resentative(s). 72. Identify your company’s legal counsel on labor rela- tions matters. Identify the non-union company’s legal counsel on labor relations matters. 73. Identify your company’s membership status in the As- sociated General Contractors. Identify the non-union company’s membership status in the Associated General Contractors. 74. Identify your company’s membership status in any other employer association. Identify the non-union company’s membership status in any other employer association. 75. Identify your company’s officers. Identify the non-union company’s officers. 76. Identify your company’s directors. Identify the non-union company’s directors. 77. Identify place(s) and date(s) of your company’s direc- tors meetings. Identify place(s) and date(s) of the non-union company’s directors meetings. 78. Identify your company’s owners and or stockholders. Identify the non-union company’s owners and or stock- holders. 79. Identify the ownership interest held among your com- pany’s owners and or stockholders. Identify the ownership interest held among the non-union company’s owners and or stockholders. [G.C. 8(b)]