Kranz Heating & Cooling

KRANZ HEATING & COOLING 401 Illinois Heating and Air Conditioning, Inc. d/b/a Kranz Heating & Cooling and Sheet Metal Workers’ International Association, Local Un- ion 265. Case 13–CA–36388 May 11, 1999 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN AND BRAME On December 15, 1998, Administrative Law Judge Bruce D. Rosenstein issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed an- swering briefs. 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 decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order as modified.1 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Illinois Heating and Air Conditioning, Inc. d/b/a Kranz Heating & Cooling, Villa Park, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). “(a) Furnish to the Union the information it requested on June 13, 1997.” 2. Substitute the attached notice for that of the admin- istrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively with Sheet Metal Workers’ International Association, Local Union 265, by refusing to furnish it, on request, with informa- tion necessary for, and relevant to the Union’s function as the exclusive bargaining representative of certain of our employees. 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. 1 We have modified the judge’s recommended Order to require the Respondent to provide the Union with the information that it has re- quested, without the necessity of making a new request. See I & F Corp., 322 NLRB 1037, 1037 fn. 1 (1997). WE WILL furnish the Union with the information it re- quested on June 13, 1997. ILLINOIS HEATING AND AIR CONDITIONING, INC. D/B/A KRANZ HEATING & COOLING Richard S. Andrews, Esq., for the General Counsel. Richard L. Marcus, Esq. and Ellen P. Zivitz, Esq., of Chicago, Illinois, for the Respondent-Employer. Stephen J. Rosenblat, Esq., of Chicago, Illinois, for the Charg- ing Party. DECISION STATEMENT OF THE CASE BRUCE D. ROSENSTEIN, Administrative Law Judge. This case was tried before me in Chicago, Illinois, on July 22 and 23, 1998, pursuant to a complaint and notice of hearing (the complaint) issued on April 8, 1998, and an amendment to the complaint on July 10, 1998, by the Regional Director for Re- gion 13 of the National Labor Relations Board (the Board). The complaint, based on a charge filed on September 15, 1997, 1 by Sheet Metal Workers’ International Association, Local Union 265 (the Union or Charging Party), alleges that Illinois Heating and Air Conditioning, Inc. d/b/a Kranz Heating & Cooling (the Respondent or Employer)2 has engaged in certain violations of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act).3 Issues The complaint alleges that the Respondent refused to provide necessary and relevant information to the Union for the per- formance of its duties as the exclusive bargaining representa- tive of the unit in violation of Section 8(a)(1) and (5) of the Act. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, Charging Party, and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent, a corporation, is engaged in the service of heating and air conditioning, with an office and place of busi- ness in Villa Park, Illinois, where during 1996 it derived gross revenues in excess of $500,000 and performed services valued in excess of $50,000 for companies directly engaged in inter- state commerce. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. Even if the Respondent went out of business on November 25, 1996, based on its admission that it satisfied the Board’s jurisdictional standards for 1996, the Board has jurisdiction over the Respon- 1 All dates are in 1997 unless otherwise indicated. 2 During the course of the hearing, the General Counsel and the Re- spondent agreed to amend the complaint to change the name of the Employer from Kranz Heating & Cooling, Inc. d/b/a Kranz Mechanical to the above. 3 The General Counsel amended par. 7 of the complaint, during the course of the hearing, to include an 8(a)(1) allegation. 328 NLRB No. 52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 402 dent. See Benchmark Industries, 269 NLRB 1096, 1097–1098 (1984). II. ALLEGED UNFAIR LABOR PRACTICES A. The Facts Respondent has been in the heating and air-conditioning business for approximately 30 years and for the pertinent period was owned and operated by President James R. Schaaf. Since at least August 1, 1992, until November 25, 1996, when the Respondent went out of business, the Union has been the des- ignated exclusive collective-bargaining representative of the unit employees. This recognition has been embodied in succes- sive collective-bargaining agreements, the most recent of which was effective from June 1, 1996, to May 31, 1999. On November 26, 1996, a number of Respondent’s employ- ees reported to work around 6:30 a.m. at the 305 W. North Avenue location and were unable to enter the premises. Shortly thereafter Schaaf arrived at the facility, opened the locked door, and called the assembled employees to a meeting in his office. Schaaf announced that the employees services were no longer needed as he sold the union branch of the Company and re- quested the employees to remove their tools from the company trucks before returning home in taxi cabs provided by Respon- dent. On that same day, Schaaf telephoned Union Business Manager George Slater and informed him that because he sold his business, he intended to shut down the 305 W. North Ave- nue location, and terminate all the union employees. Employee Jeff Trucksa testified that while working at Re- spondent in the fall of 1996, he observed invoices and contracts that said Illinois Heating and Air Conditioning d/b/a/ Kranz Heating & Cooling, while other contracts showed a caption of Kranz Heating & Cooling and Kranz Mechanical. Approxi- mately 1 week after Trucksa was laid off, he received a tele- phone call from Schaaf, who inquired if he would work for him as a union subcontractor and complete a job that he previously worked on before the layoff. Trucksa declined the offer. Between December 1996 and early 1997, Slater was in- formed by several of the laid-off employees that Respondent’s trucks were taking equipment in and out of the North Avenue location. He also was provided with a copy of a February 23 Chicago Tribune newspaper ad, that sought business and de- picted a picture of a truck identical to the type used by Respon- dent before the layoff with the same telephone number for the North Avenue location. In January 1997, Slater learned from his accountants that during the second quarter of 1996, Kranz Heating & Cooling, Inc. became Illinois Heating & Air Condi- tioning, Inc. Then in November 1996, Illinois Heating & Air Conditioning, Inc. and another company owned by Schaaf, Kranz Mechanical, was purchased by American Residential Services, to which Schaaf became a stockholder. In March 1997, Trucksa observed Respondent trucks driving in the neighborhood streets and credibly testified that the color- ing and lettering of the trucks was identical to those that he drove while employed at Respondent. He also observed a number of the trucks getting gasoline at the same service sta- tion that he previously used. In early June 1997, Trucksa saw a number of ads in the Chicago Tribune newspaper showing that Respondent was advertising for business. He gave the ads to Slater at the regular scheduled June 10 union meeting, held on the second Tuesday of each month. Also in June 1997, em- ployee Kip Costenaro credibly testified that while he drove by the North Avenue facility he observed Schaaf and salesman John Pole inside the office. Additionally, in 1997 Costenaro saw Respondent’s name listed in the telephone directory with the same number for the North Avenue location. During the union meeting, a discussion took place concern- ing what to do as it appeared that Respondent was continuing to operate its business despite abrogating the parties’ collective- bargaining agreement and laying off all the union employees. Slater informed the employees that a questionnaire was being prepared to determine whether the Employer was still in exis- tence and operating under a different name. Accordingly, on June 13, Slater prepared and sent regular and certified mail, return receipt requested, a “Double-Breasted Questionnaire” (G.C. Exh. 1) consisting of 67 questions to discern whether Respondent and the new company were alter egos or joint em- ployers.4 The Respondent did not reply to or provide the re- quested information to the Union despite signing the certified return receipt on June 16 (G.C. Exh. 15). In this regard, an individual by the name of John Pole signed the receipt and was identified during the hearing as a salesman employed by Re- spondent prior to the close of its business on November 25, 1996. B. Analysis and Conclusions The General Counsel argues that the Union was entitled to the information requested in the letter of June 13, and that Re- spondent’s refusal to fulfill that request violated Section 8(a)(1) and (5) of the Act. The Respondent opines that the Union has no bargaining relationship with regard to any new company and that even if a bargaining obligation exists if the two-firms were alter egos, the General Counsel has not shown that the Union had the necessary factual basis for the demand for information regarding the relationship between Respondent and any new company. The Board in Sheraton Hartford Hotel, 289 NLRB 463–464 (1988), set forth the law to be applied in situations like the in- stant matter: Section 8(a)(5) obligates an employer to provide a un- ion requested information. If there is a probability that the information would be relevant to the union in fulfilling its statutory duties as bargaining representative. Where the requested information concerns wage rates, job descrip- tions, and other information pertaining to employees within the bargaining unit, the information is presump- tively 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 bar- gaining unit, to satisfy the burden of showing relevance, the union must offer more than mere suspicion for it to be entitled to the information. 4 The cover letter was addressed to Jim Schaaf at the North Avenue location and stated in pertinent part that: The undersigned is the Business Manager for the Sheet Metal Workers’ International Association, Local 265. Your company and Local 265 have been parties to a collective bar- gaining agreement for the past several years. It is our under- standing that your company is related to a non-union com- pany known as Illinois Heating & Air Conditioning. In order to perform its responsibilities as the exclusive representative of Kranz Heating and Cooling, Inc.’s employees, the Union hereby requests that you provide answers to the enclosed questions no later than June 23, 1997. KRANZ HEATING & COOLING 403 Also, where as in the instant case, a union has asked an em- ployer for information to show either an alter ego, or a joint employer relationship, the union is entitled to such information if it demonstrates that when it made the request it had “an ob- jective factual basis for believing that such a relationship ex- isted. M. Scher & Son, 286 NLRB 688, 691 (1987). The Union here has clearly satisfied the burden of establish- ing the relevance of the information that they requested on June 13. They have represented Respondent’s employees for a number of years and were a party to a viable collective- bargaining agreement that was executed in June 1996, a period before the Respondent went out of business. The Union is entitled to know whether the Respondent legitimately went out of business as it alleges, or whether Schaaf created a new com- pany and transferred Respondent’s work in order to pay lower nonunion wages and be more profitable and/or to get rid of the Union. Additionally, as set forth in the June 13 cover letter, the Union sought information in order to perform its responsibili- ties as the exclusive representative of Respondent’s employees and to enforce the provisions of the parties’ collective- bargaining agreement. I also find that by June 13 the Union had “an objective fac- tual basis” for believing that the Respondent and the new com- pany were either joint employers or alter egos of each other, and therefore, constituted a single employer for purposes of enforcing the collective-bargaining agreement. Thus, by that date, the Union knew that the Respondent was operating the same or similar business from the same location with the same equipment and telephone number as was previously used prior to going out of business on November 25, 1996. Moreover, the Union knew that Schaaf and other former Respondent employ- ees were involved in running the business and advertised in the newspaper and telephone directory under the same Kranz Heat- ing & Cooling name. Under these circumstances, I find that the Union has shown that all the information requested in its letter to the Respondent, dated June 13, was relevant and essential to the performance of its duty as the collective-bargaining representative of Respon- dent's employees. I conclude, therefore, that the Respondent, by failing and refusing to provide all the information requested by the Union in the letter of June 13, violated Section 8(a)(1) and (5) of the Act. E. J. Alrich Electrical Contractors, 325 NLRB 1036 (1998). CONCLUSIONS OF LAW 1. The Respondent has been engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union has been a labor organization within the mean- ing of Section 2(5) of the Act. 3. By failing and refusing to respond to the Union’s informa- tion request made on June13, 1997, the Respondent violated Section 8(a)(1) and (5) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. In that regard, I shall recommend that Respondent be ordered to, on request, promptly provide the Union with the information that it requested on June 13, 1997. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended5 ORDER The Respondent, Illinois Heating and Air Conditioning, Inc. d/b/a Kranz Heating & Cooling, Villa Park, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain in good faith with Sheet Metal Workers’ International Association, Local Union 265, by fail- ing and refusing to furnish it with information that was re- quested on June 13, 1997, which information is relevant and necessary to administer the collective-bargaining agreement that they have with the Respondent. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Furnish to the Union, on request, the information it re- quested on June 13, 1997. (b) Within 14 days after service by the Region, post at its fa- cility in Villa Park, Illinois, copies of the attached notice marked “Appendix.” 5 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility in- volved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Respondent at any time since June 13, 1997. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. 5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses. 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”