Proctor Mechanical Corp.

PROCTOR MECHANICAL CORP Proctor Mechanical Corporation and Plumbers and Steamfitters Local Union No. 33, United Asso- ciation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO. Case 18-CA- 9202 8 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 9 January 1986 Administrative Law Judge Walter J. Alprin issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Union filed a brief in response. The National Labor Relations Board has delegat- ed 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, l and conclusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Proctor Me- chanical Corporation, Des Moines, Iowa, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. I The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 We adopt, in the absence of exceptions, the judge's conclusion that the Respondent did not violate Sec 8(a)(5) and (1) of the Act by refusing to provide the information sought in the Union's questions No 4 and No. 18 contained in its letter of 25 February 1985 to the Respondent Larry A. Witherell, Esq. and Mary E. Leary, Esq., for the General Counsel. James Swanger, Esq. (Rogers, Phillips & Swanger), of Des Moines, Iowa, for the Respondent. Connie Howard, Esq. (Robins, Zelle, Larson, and Kaplan), of St Paul, Minnesota, for the Charging Party. DECISION STATEMENT OF THE CASE WALTER J. ALPRIN, Administrative Law Judge. The original charge was filed by Plumbers and Steamfitters Local Union No. 33, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Indus- try of the United States and Canada, AFL-CIO (Union 201 or Charging Party), on 13 May 1985,1 and amended on 26 June. The complaint and notice of hearing issued 27 June, alleging that Proctor Mechanical Corporation (Proctor or Respondent) failed to comply with the Union's request for information and thereby violated Section 8(a)(1) of the National Labor Relations Act by interfering with, restraining, and coercing employees in the exercise of their rights, and violated Section 8(a)(1) and (5) by failing and refusing to bargain collectively in good faith with the representatives of its employees by not answering questions relating to whether Proctor had established a nonunion "double-breasted" operation. On the entire record, including my observation of the witnesses, and after due consideration of the briefs, I make the following FINDINGS OF FACT I. JURISDICTION AND BACKGROUND Proctor, an Iowa corporation with an office and place of business in Des Moines, Iowa, was at all material times a commercial mechanical contractor engaged in the installation and maintenance of plumbing, heating, and air-conditioning equipment. It is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union was at all material times a labor organiza- tion within the meaning of Section 2(5) of the Act, rep- resenting the following employees of Respondent, which constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. All plumber, steamfitter and pipefitter employees employed by Respondent as set forth in and cov- ered by the collective-bargaining agreement effec- tive 1 June 1984, through 31 May 1987, between the Central Iowa chapter of the Mechanical Contrac- tors' Association of Iowa, Inc., of Des Moines, Iowa and Vicinity and the Union; excluding office clerical employees, professional employees, guards and other employees. II. INTRODUCTION The complaint alleges that Proctor failed to bargain collectively with the Union by refusing to furnish infor- mation requested by the Union as to possible "double- breasted" operations by an associated nonunion compa- ny. Respondent disputes that a prima facie case was pre- sented by the General Counsel, alleging that the list of questions shown was not that actually received, and that the list received was neither relevant nor necessary, and that if puma facie case was presented, that the informa- tion requested was of a separate and not a double-breast- ed employer which Respondent was neither required nor able to obtain or provide. Since at least 1970, Proctor and the Union have had a history of collective bargaining, with the most recent contract being effective for a 3-year period from 1 June I All dates are in 1985 unless otherwise indicated 279 NLRB No. 33 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1984. The Union, through the General Counsel, pro- duced Iowa State Corporate Annual Reports for Proc- tor, showing its officers to have been, from 1980 to 1983, the following: Pres., Treas., Director, and Registered Agent- Earl Proctor Vice President-Michael Proctor Vice President-Joseph Proctor Vice Pres. and Asst. Secty/Treas.-Donald J. Deskin Secretary-William McDonald Earl Proctor (Earl) is the father of Michael (Mike) and Joseph (Joe). IOTEC Plumbing & Heating Company (IOTEC) was formed at an undisclosed time, with all stock owned by Earl's wife. Its purpose was to bid on so-called Minority Business Enterprise projects, but the record does not dis- close whether or not it did so. State records, as above, showed that in 1982 and 1983 Earl was president, secre- tary, director, and registered agent, and Joseph was vice president of IOTEC. The Union had first learned of IOTEC in "the late 1970s," and its business manager, Raymond Sullivan, telephoned Earl to say he had heard Proctor had another company operating nonunion. Earl admitted this was the case, but stated that it was legal because IOTEC would be operating outside the geographic territory of the Union and of the bargaining agreement. Sullivan took no action, and in fact was out of office at the Union until 1983. In early 1984, Sullivan was told by Proctor employee and union member Greg Pohren that Earl asked him to do some work for IOTEC at the Highland Apartments, in Ames, Iowa, within the Union's geographic territory. Sullivan testified that it was only after Pohren had condi- tioned doing this work on union approval that the Union was phoned, not by Earl, but by Joe. Sullivan agreed to the assignment, as being within the "management rights" clause of the contract. Pohren reported to Sullivan that both Earl and Michael advised him when and where the work was to be performed, that he directly with the IOTEC project superintendent, and that he saw Proctor equipment, i.e., "Gang Boxes," for overnight lockup of tools being used by IOTEC employees. Shortly thereafter, in the spring of 1984, the Union re- ceived a complaint from Jim Carlyle, owner of a union contractor, that Proctor had obtained blueprints to bid on a job, but that IOTEC, and not Proctor, had made the bid with a sharply improved wage competitive bene- fit. Subsequently, the Union learned that Proctor and IOTEC, which had occupied the same office building and storage lot/warehouse, moved offices, again to a common address, with a storage lot and warehouse shared at the old address. Gary Riley, a Proctor truck- driver and union member, informed the Union that Proc- tor and IOTEC shared supplies, employees, and control over labor relations; that he was hired in January 1984 by Earl, and received assignments from Earl, Joe, and Mike; that he delivered materials to both Proctor and IOTEC jobsites; and that he has observed both Proctor and IOTEC employees taking material from the storage yard without recording for which company the materials were taken. One of Proctor's former employees, John O'Hara, told the Union that while employed by Respondent he did es- timating and detailing work for IOTEC, and was also re- quested by Earl to organize figures on IOTEC's High- land Apartments project. He also reported that he had seen an IOTEC employee driving a van formerly owned by Proctor and had been asked by Earl to instruct an IOTEC employee on a proceedure used in the state plumbing test. During the winter of 1984-1985, Sullivan called Joe to say he had heard that a Proctor trailer had been seen at an IOTEC jobsite. Joe responded that Proctor was merely leasing the tractor to IOTEC. In view of all the above, the Union decided to grieve what it considered to be the failure of Proctor to apply the terms of the bargaining agreement to the employees of IOTEC, which it alleged to be "owned, operated, and/or controlled" by Earl Proctor. The bargaining agreement was, with minor modification, the same print- ed agreement which the Union had negotiated with the Central Iowa Chapter, Mechanical Contractors Associa- tion of Iowa, Inc. (the Association), on behalf of Asso- ciation members and of nonmembers who had designated the Association as bargaining agent, even though Re- spondent Proctor was neither a member nor a designa- tor. The grievance procedure called for notification by the grieving party to the Union, or to the Association's executive vice president, who were to first attempt set- tlement. Failing settlement the issue would go to a Joint Grievance and Arbitration Board and, if necessary, thereafter to binding arbitration, at a shared cost. On 1 February Sullivan prepared a grievance letter to David Semarad, the Association executive vice president, and directed his secretary to mail it. It is not disputed that a few days thereafter Semerad phoned Sullivan to report that Proctor refused to participate in the grievance be- cause they had nothing whatsoever to do with IOTEC.2 III. THE UNFAIR LABOR PRACTICE On 25 February Sullivan prepared a letter to Earl, stating that the Union was "investigating the extent of [sic] which Union companies in its industry may be oper- ating nonunion. . . . We are aware of a practice among Union companies, their officers or other principals, to operate nonunion companies to perform work that would otherwise be done by the Union company." The letter continues to specifics, as follows: Your company is operating such a nonunion compa- ny, known as IOTEC Plumbing and Heating Com- pany. As part of our investigation of this matter, we require that you supply us with information con- 2 Joe testified that Semerad never mentioned the grievance to him, but this does not dispute that the grievance was filed with and delivered to the Association, and that Semerad told Sullivan that Proctor refused to discuss it It would, from the Union's point of view, certainly be more probable that Semerad discussed such things with Earl, and not with Joe or Mike Earl, who had firsthand knowledge of conversations with Sulli- van and with Semerad, did not testify r PROCTOR MECHANICAL CORP. cerning your company's relationship with the non- union company. If you are unable to furnish some of the information requested, please provide all information that you can. Sullivan gave this letter to his secretary for mailing, together with an attachment consisting of the questions. He testified that the following 27 questions, on 2-1/2 and a half pages of letter-sized paper, was that list: INFORMATION TO BE REQUESTED 1. Copies of all payroll records for both the union and non-union company for the preceding five years, including tax withholding information filed with the state and federal governments. 2. Copies of minutes of meetings of the share- holders and boards of directors of both companies for the preceding five years. 3. A list of the names of all shareholders, togeth- er with the number of shares held, for both compa- nies. 4. The financial statements and annual audit in- formation for the past three fiscal years for both companies. 5. All correspondence, contracts, letters, notes, memoranda, or any other written documents ex- changed between the two companies or any direc- tors, officers, agents or employees of both compa- nies for the preceding five years. 6. A list of all officers, agents, managers and em- ployees of both companies, together with their dates of hire, dates of termination, job classifications and applicable rates of pay for the preceding five years. 7. A list of all banks in which both companies maintain accounts, either for savings, checking or loans, together with the names of personnel author- ized to draw upon or do business with respect to those accounts. 8. A list of names of all officers and directors of both companies for the preceding five years. 9. A list of all equipment owned or leased by both companies, together with the date of the pur- chase or lease and the name of the officer, employ- ee or agent signing the purchase or lease agreement. 10. What positions in the non-union company are held by each officer, shareholder, director or other management representative of the Union company? 11. State the name of each person who has a function related to labor relations for both compa- nies. 12. What customers of the non-union company are now or were formerly customers of the union company? State the difference, if any, and type of business engaged in by the union company and the non-union company. 13. What services, including clerical, administra- tive, bookkeeping, managerial, engineering, estimat- ing or other services are performed for the non- union company by or at the union company? 203 14. What supervisory functions are performed by employees at the Union company over employees of the non-union company? 15. What insurance or other benefits are shared in common by employees of the union company and employees of the non-union company. 16. What skills do the employees of the non- union company possess that employees of the union company do not possess? 17. Please list all former employees of the union company that are now employed by the non-union company together with their titles. 18 State whether the non-union company is a member of the multiemployer bargaining associa- tion. 19. Does the non-union company have separate contractor licenses, bank accounts, books, insurance policies and tax returns than the union company? 20. Was there any leasing of equipment between the union and non-union companies during the last year, and was it done by written agreement? If so, provide copies of all such agreements. 21. Was there any interchange of employees in the field during the last year between the two com- panies? 22. Please provide the names of all the customers of both companies in the past three years. 23. Provide a list of all jobs performed by both companies during the past three years. 24. State the name of the accountant for both the union and non-union company. 25. Provide a list of all real estate owned or leased by both companies for the preceding three years. If real estate was sold or acquired in that period of time, please indicate to whom or from whom the real estate was sold or leased. 26. Copies of all purchase and/or sales agree- ments and contracts, or other documents of sale or lease for vehicles, equipmrnt, or materials between the union and/or the non-union company and ven- dors or lessors of said vehicles, equipment or mate- rials of the preceding five years. 27. Copies of invoices for all materials sold to other contractors from both companies for the pre- ceding five years. Respondent admits receipt of the letter, with enclo- sure, but disputes that the above were the contents of the enclosure. Earl, to whom the letter was addressed, did not testify. Joe testified that he never saw the above list until service of the complaint, to which it was appended. He states that the enclosure he received was a document of 14 pages, containing 78 or 79 two-part questions. The document was not produced at the hearing, and no testi- mony given about the specific questions except that one inquired whether IOTEC was a member of the Associa- tion. Joe's letter in response to the demand states as follows: Please be advised that Proctor Mechanical Corpora- tion is not among the alleged non-union operations generally referred to in your letter which "may vio- 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD late provisions in the collective bargaining agree- ment or the federal labor law." Proctor Mechanical Corporation is in full compliance with the collective bargaining agreement and the law. I assume that if you had any objective factual basis for believing to the contrary, you would have said so in your letter. While I certainly understand our legal obligation to provide you with necessary and relevant informa- tion, there is nothing in your letter which indicates why the voluminous information requested meets these standards. To the contrary, your request is clearly part of a general, industry-wide survey or investigation. Accordingly, I respectfully decline your invitation to participate. Neither party thereafter contacted the other, and the Union filed its charge alleging violation of the Act. IV. DISCUSSION A. General The issue here is not whether Proctor was engaging in a double-breasted operation through IOTEC, but wheth- er the Union had actual cause for asking relevant ques- tions. As was stated in Bohemia, Inc., 272 NLRB 1128, 1129 (1984): The applicable legal principles are not in dispute in this case . It is well established that an employer must provide a union with requested information "if there is a probability that such data is relevant and will be of use to the union in fulfilling its statutory duties and responsibilities as the employees' exclu- sive bargaining representative" . . . . Information about terms and conditions of employment of em- ployees actually represented by a union is presump- tively relevant and necessary and is required to be produced. . . . Information necessary for processing grievances under a collective-bargaining agreement, in- cluding that necessary to decide whether to proceed with a grievance or arbitration, must be provided as it falls within the ambit of the parties ' duty to bar- gain. . . . However, when a Union's request for informa- tion concerns data about employees or operations other than those represented by the Union .. . there is no presumption that the imformation is nec- essary and relevant to the Union's representation of employees. .. . [T]he Union's request for information was based solely on the suspicion of some . . . employees that work had been transferred . . . because of the wage cut there. The Union does not contend , nor does the record demonstrate, that it had any objective fac- tual basis for believing such a transfer had occurred. [Emphasis added.] In the matter at hand the Union had a number of fac- tual basis for the belief that the unionized employer was simultaneously engaged in nonunion operations within the geographic scope of the existing bargaining agree- ment. The Union had documentary proof, not mere sus- picions, that Proctor and IOTEC shared officers. It had Earl's undenied admission in the late 1970s that Proctor operated the nonunion entity . It had the statements by Proctor employees Pohren , Riley, and O'Hara that Proc- tor employees were used on IOTEC projects , and that they shared offices, equipment, supplies, and bidding in- formation. All of this constituted not suspicion, but actual proof of a double -breasted operation. The Union attempted to implement a grievance through the Association pursuant to the terms of the bar- gaining agreement, and it is undenied that the Union was told Respondent would not participate. With the existing "objective factual basis," the Union had the right to re- quest, and demand , information both as to the unionized and the nonunionized operation. B. Delivery and Relevancy of Question It is proven that Sullivan 's letter, with enclosed ques- tions, was received by Respondent . I do not credit Joe's bare assertion that the enclosure he received was not the same one Sullivan gave as being mailed with the letter, in view of Joe's failure to produce the questions he testi- fies he received, or further testimony about their content, and, collaterally, their relevance to the issues of double- breasted operations.3 Virtually all of Sullivan's questions relate directly to evidence of the existence, or nonexistence , of the classic double-breasted operation . In fact, a number of the ques- tions have received explicit Board approval in similar cases.4 Two questions, however, I find not relevant to the issue of double-breasted operations . The first is question 18, about the nonunion company's membership in a trade association which acts as bargaining agreement negotia- tor for its members. In addition, financial statements and audit information, as in question 4, do not deal with the issue involved. C. Respondent 's Other Defenses Respondent attempts to raise a number of other de- fenses-that the Charging Party did not take earlier, al- ternative, or additional actions; that certain reasons exist- ed at periods of time for individuals holding office in the two corporations at the same time; that labor performed by employees of one company for the other company was in fact billed (and presumably paid) between the corporations; that records, supplies, inventories, and so forth were separately maintained , and if cross-utilized were properly accounted for; that Proctor's performance of office work for IOTEC was done pursuant to an oral contract later reduced to writing ; etc. However, the ex- istence or nonexistence of double -breasted operations is not here in issue . The sole issues here are whether the Union had a reasonable belief that such operations were 9 Joe's testimony that one question was the same as Sullivan's question 18, regarding IOTEC's membership in the Association , and that the ques- tions were each of two parts paralleling most of Sullivan's questions about both union and nonunion companies, reinforces my belief that there was only one list of questions * Walter N Yoder & Sons, 270 NLRB 652, 655 ( 1984), and cases cited therein PROCTOR MECHANICAL CORP. being conducted, and whether the questions it propound- ed were relevant thereto. I have found in the affirmative on both those issues, and the purported defenses raised above will not relieve Respondent from responding to the questions, with the two exceptions above noted. On the basis of the above, and the record as a whole, I find that there is a substantial probability that the infor- mation which the Union requested from Respondent will, with the exception of questions 4 and 18, be rele- vant and of use to the Union in fulfilling its statutory re- sponsibility in representing the employees in the appro- priate unit, and in administering and enforcing its collec- tive-bargaining contract with Respondent, and that, therefore, by refusing and failing to provide to the Union the information requested the Respondent violated Sec- tion 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The following bargaining unit is a unit appropriate for collective bargaining within the meaning of Section 9(a) of the Act: All plumber, steamfitter and pipefitter employees employed by Respondent as set forth in and cov- ered by the collective bargaining agreement effec- tive June 1, 1984, through May 31, 1987, between the Central Iowa Chapter of the Mechanical Con- tractors Association of Iowa, Inc., of Des Moines, Iowa and Vicinity and the Union; excluding office clerical employees, professional employees, guards and all other employees. 4. At all times material to this proceeding, the Union was and continues to be the exclusive representative of the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. Respondent, by failing and refusing to give the Union, in writing, the information requested in the Union's letter, with attachment, dated 25 February 1985, with reference to Respondent's relationships and dealings with IOTEC Plumbing and Heating Company, violated Section 8(a)(5) and (1) of the Act. THE REMEDY Having found that Respondent has violated Section 8(a)(5) and (1) of the Act, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eds s 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 ORDER 205 The Respondent, Proctor Mechanical Corporation, Des Moines, Iowa, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain collectively with Plumbers and Steamfitters Local Union No. 33, United Association of Journeymen and Apprentices of the Plumbing and Pipe- fitting Industry of the United States and Canada, AFL- CIO, as the exclusive bargaining agent of the employees in the following appropriate bargaining unit, by refusing to furnish the Union the information requested by items I through 3, 5 through 17, and 19 through 27 of the Union's letter, with attachment, dated 12 February 1985: All plumber, steamfitter and pipefitter employees employed by Respondent as set forth in and cov- ered by the collective bargaining agreement effec- tive June 1, 1984, through May 31, 1987, between the Central Iowa Chapter of the Mechanical Con- tractors Association of Iowa, Inc., of Des Moines, Iowa and Vicinity and the Union; excluding office clerical employees, professional employees, guards and all other employees. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, furnish to the Union in writing the in- formation requested by items 1 through 3, 5 through 17, and 19 through 27 of the Union's letter, with attachment, dated 12 February 1985. (b) Post at its office and other facilities at Des Moines, Iowa, copies of the attached notice marked "Appen- dix."6 Copies of the notice, on forms provided by the Regional Director for Region 18, 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 cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, 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 Re- spondent has taken to comply. Board and all objections to them shall be deemed waived for all pur- poses 6 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 Nation- al 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 " 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively with Plumbers and Steamfitters Local Union No. 33, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, as the exclusive bargaining rep- resentative of our employees in the following appropriate unit, by refusing to furnish the Union items 1 through 3, 5 through 17, and 19 through 27 requested in its letter, with attachment, of 12 February 1985: All plumber, steamfitter and pipefitter employees employed by Respondent as set forth in and cov- ered by the collective bargaining agreement effec- tive June 1 , 1984, through May 31, 1987, between the Central Iowa Chapter of the Mechanical Con- tractors Association of Iowa, Inc., of Des Moines, Iowa and Vicinity and the Union; excluding office clerical employees, professional employees, guards and all other 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. WE WILL, on request, furnish the Union the informa- tion requested in its letter , with attachment, of 12 Febru- ary 1985 that is relevant and necessary to its role as the exclusive bargaining representative of our employees in the bargaining unit. PROCTOR MECHANICAL CORPORATION