Boyers Construction Company

BOYERS CONSTRUCTION COMPANY Boyers Construction Company and Iron Workers Local 55 of the International Association of Bridge, Structural and Ornamental Iron Work- ers, AFL-CIO. Case 8-CA-15723-2 19 August 1983 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JENKINS AND ZIMMERMAN On 30 March 1983 Administrative Law Judge Irwin H. Socoloff issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel and the Charging Party filed answering briefs to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Boyers Con- struction Company, Wauseon, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. 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 collectively with Iron Workers Local 55 of the Interna- tional Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, by fail- ing and refusing to furnish the said labor orga- nization with the information requested in its letters to us of 20 April and 28 May 1982. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL.., upon request, furnish the Union with the information requested in its letters to us dated 20 April and 28 May 1982. BOYERS CONSTRUCTION COMPANY DECISION STATEMENT OF THE CASE IRWIN H. SocoLouF, Administrative Law Judge: Upon a charge filed on June 18, 1982, by Iron Workers Local 55 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, herein re- ferred to as the Union, against Boyers Construction Company, herein called Respondent, the General Coun- sel of the National Labor Relations Board, by the Re- gional Director for Region 8, issued a complaint dated August 2, 1982, alleging violations by Respondent of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. Respondent, by its answer, denied the commis- sion of any unfair labor practices. Pursuant to notice, a trial was held before me in Toledo, Ohio, on January 17, 1983, at which all parties were represented by counsel and were afforded full op- portunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence. Thereafter, the parties filed briefs which have been duly considered. Upon the entire record in this case, and from my ob- servations of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, an Ohio corporation, maintains its princi- pal office and place of business in Wauseon, Ohio, and is engaged in the construction of commercial buildings. Annually, in the course and conduct of its business oper- ations, Respondent receives goods valued in excess of $50,000 which are shipped directly from points located outside the State of Ohio. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Iron Workers Local 55 of the International Associ- ation of Bridge, Structural and Ornamental Iron Work- ers, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. iin. THE UNFAIR LABOR PRACTICES A. Background For many years, the Union has been the collective-bar- gaining representative of Respondent's employees en- gaged in ironwork, and the Union and Respondent have been parties to a number of contracts covering those em- ployees. On April 17, 1981, they signed an agreement ac- cepting the terms of a collective-bargaining contract be- tween the Union and Associated Building Contractors of 267 NLRB No. 42 227 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Northwestern Ohio, effective from July 1, 1980, until June 30, 1982. On April 20, 1982, the Union, by letter, asked Re- spondent, Boyers, to furnish information concerning the relationship, if any, between Boyers and Edifice Con- struction Management. On May 28, the Union sent a letter to Respondent asking for information about the re- lationship, if any, between Boyers and Fulco Construc- tion Co., Inc. In each instance, the Union stated that its letter "constitutes a grievance" under the contract and that the request for information was based upon the Union's belief that Respondent was diverting work from Boyers, to the second company, in order to avoid the terms of Boyers' contract with the Union. The letters further stated that the requested information was neces- sary in order for the Union intelligently to process the grievances. In the instant case, the General Counsel contends that Respondent violated Section 8(a)(5) of the Act by refus- ing to supply the requested information. Respondent as- serts that it was under no statutory obligation to do so. B. Facts' As noted, Respondent and the Union signed a contract on April 17, 1981. At that time, the president and assist- ant business agent of the Union, Harvey Takacs, spoke with Respondent's president, Jerry Boyers, concerning a construction project in Archbold, Ohio, sponsored by the La Choy Company. Takacs complained that Edifice Construction Management and Fulco Construction Co., Inc., neither of which was a signatory to a union con- tract, were on the jobsite and performing work. Boyers agreed to complete the project with employees covered by Respondent's contract with the Union, and to with- draw Edifice and Fulco from the project. In August 1981, Takacs visited a jobsite on Airport Highway in Toledo, Ohio, where he recognized certain workers as previous employees of Respondent. Thereaf- ter, Takacs spoke to Boyers, who stated that the jobsite work was not being performed by Respondent, but by Boyers' construction management firm, Edifice. The Union then placed an informational picket line at the job- site to protest the failure of Edifice to maintain area standards. Following that action, the disputed work was completed by Respondent under the terms of the con- tract. While inspecting the January 1982 edition of the Dodge Report, a trade publication, Takacs learned that Edifice had placed a bid to be general contractor of a large expansion project for the Excello Corporation's McCord subsidiary in Wauseon, Ohio. The Dodge Report of April 5, 1982, revealed that Edifice had been awarded the contract. In both instances, the trade publi- cation listed an address for Edifice identical to Respond- ent's address. In light of the foregoing, Takacs concluded that there was substantial reason to believe that Respondent and Edifice were a "dual shop" operation. On April 20, he I The factfindings contained herein are based on the testimony of the Union's president and assistant business agent, Harvey Takacs, the only witness who testified in this proceeding. sent a grievance letter to Respondent charging violations of specified articles of the contract by the division of work from Respondent to Edifice. The letter requested that certain information be supplied to the Union in order to assist it in the proper processing of the griev- ance, as follows: The position(s) in Respondent held by each officer, shareholder, director or other management repre- sentative of Edifice Construction Management (hereinafter referred to as "Management"). The position(s) in Management held by each officer, shareholder, director or other management repre- sentative of Respondent. The name of each person who has a function relat- ed to labor relations for the Respondent. The name of each person who has a function relat- ed to labor relations for Management. The customers of the Respondent who are now, or were, referred customers of Management. The customers of Management who are now, or were, referred customers of the Respondent. The services, including clerical, administrative, bookkeeping, managerial, drafting, pattern making, detailing, sketching, or other services which are performed for the Respondent by Management. The services, including clerical, adminstrative, bookkeeping, managerial, drafting, pattern making, detailing, sketching, or other services which are performed for Management by the Respondent. The supervisory functions performed by employees of the Respondent over employees of Management. The supervisory functions performed by employees of Management over employees of the Respondent. The insurance or other benefits shared in common by employees of the Respondent and the employees of Management. The work, if any, being performed by the Respond- ent on or with Management products. The work, if any, being performed by Management on or for the Respondent and/or its products. By letter dated May 3, 1982, and thereafter, Respondent refused to supply the requested information. During the months of April, May, and June 1982, Takacs visited the McCord jobsite on a number of occa- sions and noticed that the project blueprints contained the name "Boyers Construction." During a visit to the site on June 7, he observed that structural steel and siding, which was being unloaded on site, bore computer tags showing billings to Respondent. On May 26, 1982, Takacs learned that Edifice and Fulco had jointly filed a lawsuit against the cement fin- ishers union which was then picketing the McCord job- site. On May 28, the Union sent a grievance letter to Re- spondent concerning the latter's relationship to Fulco. This letter mirrored the April 20 letter concerning Edi- 228 BOYERS CONSTRUCTION COMPANY fice, and sought corresponding information. Respondent did not reply. On June 10, the Union began picketing the McCord site. C. Conclusions It is well established that a labor organization, acting in its capacity as collective-bargaining representative, is entitled, upon appropriate request, to information from the employer that is needed by such bargaining agent for the proper performance of its duties.2 The employer's obligation to supply relevant information is part of its general obligation to bargain in good faith and applies not only during the period of contract negotiations, but also during the term of an agreement.3 In the latter period, the bargaining agent is entitled to information relevant to the performance of its duty to police the ad- ministration of an existing agreement as well as its duty to formulate proposals in connection with future contract negotiations . 4 Generally, any information which is relevant and, therefore, reasonably necessary to the union's discharge of its statutory obligations falls within the sphere of the union's entitlement. 5 This includes information of "po- tential value" to the union in assisting it "in its task of deciding whether to institute grievance proceedings or use other policing tools under the existing agreement" and in guiding the union "in contract negotiations them- selves." 6 Certain data, such as wage and related informa- tion pertaining to employees in the bargaining unit, is presumptively relevant since such data "concerns the core of the employer-employee relationship. "' In addi- tion, if requested information relates to one or more ex- isting contract provision it thus is "information that is demonstrably necessary" to the union "if it is to perform its duty to enforce the agreement and to prepare for pos- sible future negotiations." 8 Information concerning em- ployers and employees outside the represented bargain- ing unit may be requested, and must be produced, if there is a probability that such data is relevant and will be of use to the union in fulfilling its statutory duties.9 In my view, the Board's decisions in Doubarn Sheet Metal 10 and Leonard B. Hebert, Jr, & Co. I are dispos- itive of the instant matter. In those cases, the Board con- cluded that a bargaining representative, in receipt of in- formation leading it to entertain bona fide questions as to whether the employer is circumventing contractual re- quirements by its operation of a second enterprise, is en- titled, upon request, to information concerning the rela- tionship between the employer and the other enterprise. Such information must be produced if it could make ten- able the union's contentions as to contract violations by the employer. Thus, the union need not demonstrate actual instances of contractual violations before the em- 2 NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). 3 Id. 4 Western Massaohusetts Electric Co., 234 NLRB 118 (1978). b Vertol Divition, 182 NLRB 421 (1970). 6Curtiss-Wright Corp. v. NVLRB, 347 F.2d 61 (3d Cir. 1965). 7Id. s A. S. Abell Co., 230 NLRB 1112 (1977). 9 Associated General Contractors, 242 NLRB 891 (1979). 'o 243 NLRB 821 (1979). "I 259 NLRB 881 (1981) ployer must supply information. Nor must the bargaining agent show that the information which triggered its re- quest is accurate, nonhearsay, or even ultimately reliable. Rather, the union need make only an initial showing that the information sought is relevant and necessary for the evaluation and pursuit of its grievance. In this case, the Union received information from Re- spondent's president, and from occurrences at three dif- ferent construction project sites, reasonably leading it to believe that Respondent, through the Edifice and Fulco entities, might be conducting double-breasted operations for the purpose of circumventing contractual require- ments. On that basis. the Union sought information from Respondent concerning its relationship to those entities. The Union's letters requesting information set forth the specific articles of the contract which it believed Re- spondent had violated, including wage rates, working hours, overtime, holidays, union security, and benefit fund payments. Each letter specifically stated that the letter itself constituted a contractual grievance and that the requested information was needed in order for the Union to determine whether or not to proceed with the grievance. As the Union had reasonable grounds to believe that a diversion of bargaining unit work to nonunion enter- prises might have occurred, its requests for information concerning Respondent's relationships with Edifice and Fulco met the tests of necessity and relevance. By refus- ing to supply the requested information, Respondent vio- lated Section 8(a)(5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section 1. above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practice conduct in violation of Section 8(a)(5) and (1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. CONCI.USIONS OF LAW 1. Respondent Boyers Construction Company is an employer engaged in commerce, and in operations affect- ing commerce, within the meaning of Section 2(2), (6), and (7) of the Act. 2. Iron Workers Local 55 of the International Associ- ation of Bridge, Structural and Ornamental Iron Work- ers, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All journeymen, apprentices, and foremen of Boyers Construction Company engaged in ironwork, as defined by the charter grant issued by the American Federation 229 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Labor to the International Association of Bridge, Structural and Ornamental Iron Workers subject to trade agreements and final decisions of the AFL-CIO, but ex- cluding all office clerical employees and professional em- ployees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein the Union has been, and is now, the exclusive representative of all employees in the aforesaid bargaining unit for the purposes of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing to provide the Union with the information it requested in its letters to Respondent of April 20 and May 28, 1982, Respondent has engaged in, and is engaging in, unfair labor practice conduct within the meaning of Section 8(a)(5) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER12 The Respondent, Boyers Construction Company, Wauseon, Ohio, its officers, agents, successors, and as- signs, shall: 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. I. Cease and desist from: (a) Refusing to bargain collectively with Iron Workers Local 55 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, by refusing to furnish it with the information requested by it in its letters to Respondent of April 20 and May 28, 1982. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named Union by furnishing it with the information re- quested by it in its letters of April 20 and May 28, 1982. (b) Post at its facility in Wauseon, Ohio, copies of the attached notice marked "Appendix."' 3 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's repre- sentative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 8, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. i3 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in thc notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 230