Stephen Oderwald, Inc.

STEPHEN ODERWALD, INC. 277 Stephen Oderwald, Inc. and Shopmen's Local Union No. 455, International Association of Bridge, Structural & Ornamental Iron Workers, AFL- CIO. Case 29-CA-12162 February 6, 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT On 18 February 1987 Administrative Law Judge Julius Cohn issued the attached decision. The Re- spondent filed exceptions and a supporting brief, along with a motion to reopen the record' and a supporting memorandum. The General Counsel filed a brief in support of the judge's decision and in opposition to the Respondent's motion. 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, and conclusions 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, Stephen Oderwald, Inc., Long Island City, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. I The Respondent's motion, based on its assertion that it will furnish the Union relevant information, is denied as lacking in merit The issues raised in the Respondent's motion are more appropriately left for consid- eration at the compliance stage of this proceeding. Beatrice Kornbluh, Esq., for the General Counsel. Lawrence M. Monat, Esq. (Bart, Lew & Monat), of New York, New York, for the Respondent. William Colavito, of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE JULIUS COHN, Administrative Law Judge. This pro- ceeding was heard at Brooklyn, New York, on 12 June 1986. On a charge filed 2 December 1985 and served the same date, by Shopmen's Local Union No. 455, Interna- tional Association of Bridge Structural and Ornamental Iron Workers, AFL-CIO (the Union), the Acting Re- gional Director for Region 29 issued a complaint on 3 February 1986, alleging that Stephen Oderwald, Inc. (Respondent) violated Section 8(a)(1) and (5) of the Act by failing and refusing to furnish the Union with certain requested information concerning Respondent's relation- ship with another shop. It is further alleged that the in- 284 NLRB No. 40 formation sought is necessary and relevant to the Union in the performance of its function as the exclusive bar- gaining representative of employees in an appropriate unit. Respondent filed an answer denying the commission of unfair labor practices. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Re- spondent submitted a brief which has been carefully con- sidered. Upon the entire record in the case, and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a New York corporation, has a principal office and place of business in Long Island City, New York, and is engaged in the manufacture and sale of fab- ricated steel, stairs, lintels, and related products. During the past year Respondent has purchased and received at its Long Island City plant, steel and other goods and ma- terials valued in excess of $50,000, of which goods valued in excess of $50,000 were delivered to its plant di- rectly from States of the United States other than the State of New York. The complaint alleges, Respondent admits, and I find that Respondent is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The salient facts are relatively brief and basically un- controverted. The Union has represented Respondent's employees for approximately 50 years in an appropriate unit.' The most recent and current collective-bargaining agreement between Allied Building Metal Industries, Inc., the Association of which Respondent is a member, and the Union, runs from 1 July 1985 to 30 June 1988. This agreement provides for grievance and arbitration proceedings. In addition the contract also has a provision against "subletting" (subcontracting) of work usually fab- ricated in its shop except "to firms who shall agree to comply with the provisions of this agreement or an agreement which has been approved by the International Association of Bridge, Structural and Ornamental Iron Workers." 1 The unit is All production and maintenance employees of the Company en- gaged in the fabrication and/or manufacture of all ferrous and non- ferrous metals, iron, steel and other metal products, and also all maintenance employees steadily engaged in maintaining machinery and equipment and other maintenance work usually performed in the company's shop or shops, excluding all office or clerical employees, superintendents, or foremen who do not handle material or work with tools. 278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD William Colavito, president of the Union, was the sole witness in this proceeding. He testified that the Union had been informed by its shop steward, other employees, and the foreman that Respondent's estimating and draft- ing department (nonunit) had moved out of the Long Island City shop. Moreover, Ray Oderwald, president of Respondent, was now only seen rarely at the shop. They also reported that regarding a job involving a large building, only two floors had been fabricated in Long Island City and the rest was apparently done somewhere else. Further, he stated employees had noticed that prod- ucts they had finished in the shop and sent out for galva- nizing were returned to the shop together with similar items that had not been fabricated in Respondent's shop. Moreover, outside erecting crews informed Oderwald people that steel products coming on to Oderwald jobs were not coming from the Long Island City shop. Erec- tors, incidently, were not represented by the Union, but rather by another local of the Iron Workers. Respond- ent's employees fabricate products by laying out raw ma- terial in accordance with drawings, and cutting, fitting, bending, welding, drilling, punching until completion. The shop people had obtained information from other sources concerning a shop location that had a sign on the building advertising for welders and mechanics. One of the union officers was dispatched who observed this and, in addition, saw Respondent's president, Ray Oderwald, and Jack Kelly of the drafting department at that plant. This union officer had previously worked for Respond- ent and therefore recognized those officials. The building in question was located at 220 Broadway, Huntington Station, Long Island. Colavito himself visited there on 31 October 1985, arriving early in the morning while the plant was still closed, and then observed Ray Oderwald coming in by car. He knows Oderwald and observed as he parked his car, opened the gates on both sides of the plant, and then the office itself, and entered. During the next hour, he watched other cars coming in and parking at the building. He also saw and recognized some special type railings that had been built at Long Island City. Colavito then went in to the shop and saw Oderwald talking to some people in work clothes, but Oderwald recognized him and escorted him out. They talked a while in the yard. In response to a question from Cola- vito, Ray Oderwald said that he just rented space from the man who has the shop and that he, Oderwald, does the estimating there not only for Respondent, but also for the company located in this shop. He claimed this was an iron shop that has been in business for about 6 months, and had been opened by a young man from the West. Oderwald said he did not know where that man got the money for it, but also said that Respondent gave him some jobs to do. Oderwald admitted giving him the railings, which had been noticed by Colavito, for paint- ing and also some other work. Oderwald further told him that this man uses the Oderwald name and reputa- tion to get jobs, and that he, Ray, does job bidding for that company. Oderwald asked what the men were worried about and said there was nothing to worry about. Colavito re- plied that they are all concerned about their job and ben- efits. He also said that the Union itself was concerned be- cause many parts of the contract are affected by this. Oderwald merely repeated that he should not worry. At this point he was called by one of the workers to the telephone and that was the end of their conversaton. By letter dated 4 November 1985, the Union requested that Respondent furnish certain information with respect to its interest, financial or otherwise, in the iron fabricat- ing shop located at 220 Broadway, Huntington Station, Long Island. The Union asserted that it believes that such shop "may be an accretion to your present oper- ations, and thus fall within the coverage of our collec- tive-bargaining agreement" The questions asked all relate to any interest Respondent, its officers, or stock- holders may have in the ownership, control, or operation of the Huntington shop, or any other relationship or con- nection that may exist between the two companies. At the hearing Respondent admitted receiving the letter of 4 November 1985 and further that it did not fur- nish any of the requested information. Then by letter dated 25 November 1985, counsel for the Union wrote to the American Arbitration Association asking for arbitra- tion between the Union and Respondent. In this letter, counsel alleged the issue to be "concerning the employ- er's improper subcontracting of unit work, and its failure to apply the parties' contract to one of its plants, in vio- lation of the parties' collective-bargaining agreement." The Association then wrote to both parties requesting se- lection of arbitrators, to which Respondent's counsel ad- hered while noting, however, that it contends the issue set forth by the Union is outside the jurisdiction of its contractual agreement. In any event, the matter was set down for hearing before an arbitrator, which was pend- ing at the time of the hearing in this proceeding. B. Discussion and Analysis The testimony of Colavito is uncontradicted. Not only did he testify in a credible and forthright manner, but Respondent offered no witnesses to controvert his testi- mony. Indeed Respondent relies only on defenses of a legal nature, which shall be discussed. It is well settled that the duty of an employer to bar- gain in good-faith includes the obligation to disclose to its employees' collective-bargaining representative data relevant and reasonably necessary to its role as bargain- ing agent. The Supreme Court has stated: "There can be no question of the general obligation of an employer to provide the information that is needed by the bargaining representative for the proper performance of its duties." NLRB v. Acme Industrial Co., 385 U.S. 432, 435 (1967). Of course an employer's disclosure obligation relates not only to issues that may be raised at the bargaining table, but also to those raised during the administration of the collective-bargaining contract.2 It is necessary to determine whether the Union's re- quest for information pertains to a bargaining issue. Then, according to the Supreme Court, the scope of the employer's disclosure obligation is measured by a "dis- 2 Detroit Edison Go v NLRB, 44() U.S 303 (1979); NLRB v. Acme In- dustrial Go, supra, Westinghouse Electric Corp., 239 NLRB 106 (1978) STEPHEN ODERWALD, INC. 279 covery type standard" of relevance, which requires only a "probability that the desired information is relevant, and that it would be of use to the Union in carrying out its statutory duties and responsibilities." NLRB v. Acme Industrial Co., supra at 437. In NLRB v. Yawman & Erbe Mfg. Co., 187 F.2d 947, 949 (2d Cir. 1951), the Court stated "any less lenient rule in labor disputes would greatly hamper the bargaining process, for it is virtually impossible to tell in advance whether the requested data would be relevant except in those infrequent instances in which the inquiry is patently outside the bargaining issue." As to relevance it has been held that "wage and relat- ed information pertaining to employees in the bargaining unit is presumptively relevant, for, as such data concerns the core of the employer-employee relationship, a union is not required to show the precise relevance of it";3 while as to other matters, considered outside the unit, a showing of relevance must be made. In this connection it is not necessary that the information be shown to be ac- curate or even admissible in court, so long as there is some relationship to a subject of collective bargaining.4 In light of the general principles as set forth above, I turn to a consideration of the requests for information in this case. An examination of the Union's request shows that the information sought relates to any interest, financial or otherwise, that Respondent may have with the Hunting- ton ,Station shop, as well as any interest in which the principals, officers, or stockholders of Respondent have in that shop. In addition the Union seeks information concerning any other relationship such as subcontracting or any other connection between the two companies. This information is clearly relevant to the possibility that the Respondent has "sublet" work, usually fabricated in its shop, to other companies in violation of the contrac- tual provision entitled "Subletting of Work." In addition the information with respect to the possibility that Re- spondent, its officers, or stockholders may have a finan- cial interest in the Huntington Station shop would have bearing on the bargaining unit provisions of the contract. It would therefore be relevant for the Union to know whether the entity in Huntington Station is, for example, an alter ego of Respondent or whether Respondent has a lesser financial or ownership interest in that shop. Al- though Respondent has objected on the ground that such information should not be made available to determine an issue of whether the Huntington Station shop is an ac- cretion to Respondent's Long Island City shop, I find, contrary to the view expressed by Respondent, that it would have relevance with respect to unit provisions of the contract In addition it must be noted that Colavito did see and speak to Oderwald at the Huntington Station shop, and saw material made at Long Island City on the premises for the purposes of painting or fmishing. Based on all the above, I find that the General Counsel has suf- ficiently met the standard of relevance to establish that the Union was entitled to the requested information. See Clinchfield Coal Co., 275 NLRB 1384 (1985). Respondent 3 Curtiss Wright Corp. v. NLRB, 347 F 2d 61 (3d Cir. 1965). 4 See AGC of Cahfornia, 242 NLRB 891 (1979). also urges that the Union be denied its request because its letter stated the information was required in order to determine whether the "Huntington shop was an accre- tion" to the Long Island City shop. Even assuming, ar- guendo, that this would be a valid reason for refusing the information, it certainly would be cured by the next step taken by the Union when it requested arbitration under the contract. That request clearly referred to the possi- bility of subcontracting of unit work by the Respondent in violation of the collective-bargaining agreement. Respondent further offers as an affirmative defense that this proceeding be deferred to arbitration as provid- ed in the contract, in view of the fact that an arbitration hearing had already been scheduled at the time of the hearing herein. In this connection Respondent additional- ly objects on the ground that the Union had not filed a formal grievance, but rather requested arbitration when the information was not forthcoming. This issue comes clearly within the purview of United Technologies Corp., 274 NLRB 504, 505 (1985), in which the Board stated that "we, however, conclude that the 8(a)(5) allegations are not properly deferrable . . . concerning 8(a)(5) alle- gations involving an employer's refusal to furnish infor- mation requested by an exclusive collective-bargaining representative." Further the Board held "an actual griev- ance need not be pending at the time the information re- quest, nor must the information clearly dispose of the grievance." The Board also stated, "The standard for the Union's entitlement to the information requested is a lib- eral, discovery-type test as to whether the information bears upon the unia's determination to file a grievance or is helpful in evagiaiing the merits of the grievance and the propriety of pursuing the grievance to arbitration." In sum, I find that all items of information sought by the Union are relevant to the possibilities of contract vio- lations by Respondent, and since it has admittedly failed to furnish the information requested, Respondent has thereby violated Section 8(a)(1) and (5) of the Act. See also Clinchfield Coal Co., supra. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act, I shall recommend that it be ordered to cease and desist and to take certain affirm- ative action designed to effectuate the policies of the Act. I shall further recommend that Respondent be directed to turn over to the Union the information requested as set forth in its letter dated 4 November 1985. 280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce 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 unit described above constitutes a unit appro- priate for the purposes of collective-bargaining within the meaning of Section 9(b) of the Act. 4. At all times material, the Union has been the exclu- sive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 5. By failing and refusing to turn over to the Union the information requested in the Union's letter of 4 No- vember 1985, Respondent has violated Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On these fmdings of fact and conclusions of law and on the entire record, issue the following recommended5 ORDER The Respondent, Stephen Oderwald, Inc., Long Island City, New York, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with Shopmen's Local No. 455, International Association of Bridge, Structual and Ornamental Iron Workers, AFL-CIO as the exclusive bargaining representative of its employees, by failing to furnish it with information it requested, which is relevant and necessary to the processing of grievances, including contract violations. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Furnish, in timely fashion, to the Union the infor- mation set forth in the Union's request contained in letter dated 4 November 1985. (b) Post at its facility in Long Island City, Queens, New York, copies of the attached notice marked "Ap- 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 m Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. pendix."6 Copies of the notice, on forms provided by the Regional Director for Region 29, 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. 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" 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 with Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, as the exclusive bargaining representative of the employees in the bargaining unit, by failing to furnish it with infor- mation that it requests, which is relevent and necessary for the processing of grievances, including contract vio- lations. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed by Section 7 of the Act. WE WILL furnish, in timely fashion, to the Union the information requested by the Union in connection with its grievance and pending arbitration concerning work being done at a plant in Huntington Station, Long Island. STEPHEN ODERWALD, INC.