Laborers International Union Of North America

688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Laborers International Union of North America and Heavy Contractors Association, Inc. Case 17- CB-3292 9 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 18 June 1987 Administrative Law Judge George F. Mclnerny issued the attached decision. The Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondent,Laborers International Union of North America, Omaha, Nebraska, its officers, agents, and representatives, shall take the action set forth in the Order as modified. Delete paragraph 2(c) and reletter the subsequent paragraph. I In adopting the judge's finding that the Respondent 's furnishing the Employer Association with the names of the Respondent's members posed no real threat of retaliation to those members, we note that this requested information was relevant and necessary to the collective-bar- gaining process , that the record revealed no evidence of any intention by the Employer Association to retaliate against those union members named, and that the Employer Association limited its request to those Respondent members who had been employed in the heavy highway and building construction industry and to those applicants who had utilized the Respondent's hiring hall See Electrical Workers IBEW Local 497 (Apple City Electric), 275 NLRB 1290, 1290-1292 (1985) Naomi Stuart, Esq., for the General Counsel David D. Weinberg, Esq. (Weinberg & Weinberg, P.C.), of Omaha, Nebraska, for the Respondent. Malcolm D. Young, Esq. (Young & White), of Omaha, Ne- braska, for the Charging Party. DECISION GEORGE F. MCINERNY, Administrative Law Judge. Based on a charge filed 21 October 1986 by Malcolm D. Young, attorney for Heavy Contractors Association, Inc. (the Charging Party or the Association), the Regional Director for Region 17 of the National Labor Relations Board issued a complaint on 17 November 1986, alleging that Laborers International Union of North America, Local No. 1140 (the Respondent or Local 1140) had vio- lated the provisions of Section 8(b)(3) of the National Labor Relations Act by failing and refusing to furnish the Association with certain requested information. The Respondent filed an answer denying the commission of any unfair labor practices. Pursuant to a notice of hearing contained in the com- plaint, a hearing was held before me in Omaha, Nebras- ka, on 8 January 1987, at which time all parties were represented by counsel and had the opportunity to exam- ine and cross-examine witnesses, to present testimony and documentary evidence, to submit motions and re- quests, and to argue orally. After the close of the hearing the Respondent and the Union filed briefs, which have been carefully considered. On the entire record, including my observations of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. JURISDICTION The Association is composed of employer-members who are engaged in the construction industry, and it exists at least in part to represent its employer-members in negotiating and administering collective-bargaining agreements with various labor organizations, including Laborers Local 1140. The complaint alleges, the answer admits, and I find that the Association 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 complaint alleges, the answer admits , and I find that Laborers Local 1140 is a labor organization within the meaning of Section 2(5) of the Act. III. THE APPROPRIATE BARGAINING UNIT The complaint alleges, the answer admits, and I find that the following employees employed by the employer- members of the Association constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 of the Act: All full-time and regular part-time general setters, form setters, pre-cast manhole setters, inlet builders, pipe layers, chain saw operators, concrete saw oper- ators, rakers and screedmen, mortar mixer, tow boat and dredge deckhands, laborer welders, tunnel free air workers, and formsetter helpers employed by employer-members of the Association within the Nebraska counties of Douglas, Sarpy, Washington, Cass, and portions of Saunders and Dodge Coun- ties, but excluding office clerical employees, guards, supervisors as defined in the Act, and all other em- ployees. IV. THE ALLEGED UNFAIR LABOR PRACTICES The Association and Local 1140 have engaged in col- lective bargaining over some years. The latest collective- bargaining agreement between them is dated 5 May 1986 and purports to run until 1 April 1988. 285 NLRB No. 95 LABORERS(HEAVY CONTRACTORS) In addition to the geographic boundaries noted above in section III, this agreement also limits itself to certain kinds of work. Article 11(2) states that: The work covered by this Agreement shall include, but shall not be restricted to all work performed in the construction of streets and highways, airports, utilities, levee work, river and harbor work, flood control, railroad, sewer and water treatment plants (except habitable buildings within those projects), demolition of projects buildings and improvement of property on site, and heavy construction and ap- prentices. This type of work is generally referred to as heavy and highway construction work. Exempted from this contract specifically is what is referred to as "building construction," defined as follows: Building structures, including modifications thereof or additions or repairs thereto, intended to use for shelter, protection, comfort or convenience. Build- ing construction shall include the demolition of and foundation for building construction, but shall not include the preparation, grading and improvement of the property or site. Another association, Omaha Building Contractors Em- ployees Association, represents employer-members en- gaged in the building construction part of the industry. That association has its own contract with Local 1140. Both association agreements have provisions for ob- taining employees through a union-operated hiring hall. Both also contain clauses restricting contracts with other parties. The Heavy Contractors Association contract provides for a "most favored nation" clause stating that the Union will not enter into agreement with "any other contractor" for the performance of work at wages or under working conditions that are less than those in the agreement. The Omaha Building Contractors Employees Association contract provides merely that both parties agree not to enter into any agreement or contract that conflicts with the terms and provisions of the current agreement. i On 26 September 1986, Malcolm D. Young, attorney and secretary for the Association, wrote a letter to the Union. The letter stated that the Association was filing a grievance, and the letter itself was being written from the Association to determine whether your Union has been complying with the terms and conditions of the collective-bargaining agreements between your Union and the Association, and the extent and content of violations. You may deem this letter to constitute a grievance, and the request is made for the information so that the Association can deter- mine whether there is merit to grievances and al- leged violations of the collective-bargaining agree- ment by your Union. This latter contract also covers a somewhat larger geographic area than the Heavy Contractors Association contract 689 That language is somewhat ambiguous, and certainly imprecise on whether only information is wanted, or whether there are some sort of underlined contract viola- tons to be considered. The ambiguity, if not the lack of specificity, is cleared up and it becomes clear that the letter is a request for information to "aid in the adminis- tration of the collective-bargaining agreement, the en- forcement of the contract, compliance with equal em- ployment opportunity laws, and to discharge its (the As- sociation's) responsibilities to its members,, and for good faith negotiations." The 26 September letter went on to request the fol- lowing information: 1. A list of all of your members who have been employed in the heavy highway and building con- struction industry in the territory covered by the collective-bargaining agreements between your union and this Association from January 1, 1982 to date; 2. A list of all persons using your hiring hall, whether by being included in a hiring list or other- wise, during 1984, 1985 and 1986; 3. A list of all contractors engaged in the heavy highway or building construction work, with whom you have executed or otherwise entered into con- tracts, participation agreements or any other form of collective-bargaining agreement which deals with terms and conditions of employment, or payment to fringe benefit funds, together with a listing of all correspondence with those contractors pertaining to those contracts and agreements; 4. A copy of all agreements, contracts, participa- tion agreements or other documents to which your union is a party with both heavy highway and building contractors from 1982 to date; 5. A list and copy of all work orders pertaining to the request or requests by employers for referral of persons by your Union to employers from Janu- ary 1, 1983 to date for employment in heavy high- way and building construction work; 6. A list and copy of all records such as work lists pertaining to the hiring hall and referral of ap- plicants or employees by your Union to employees; 7. A list of all persons who have been referred by your union to employees under the hiring hall or otherwise from January 1, 1983 to date by date of reference, sex, race, classification, and union mem- bership or non-union membership; and 8. A list of all persons who have been referred to contactors for employment who at the time of refer- ral were not at the top of or in the next available reference position of the hiring hall list or other hiring hall document utilized by your union from and after January 1, 1984. 9. A list and copy of all notices and other docu- ments or records of your union posted in compli- ance with Equal Employment Opportunity laws or other fair employment practice requirements. 690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD An answer to these requests within 10 days was asked for. The Union did not respond, and the instant charge was filed on 21 October 1986. These nine paragraphs of requested information really fall into two general categories: information concerning the operations of the hiring hall and information con- cerning employers with whom the Union has collective- bargaining agreements, or so-called participation agree- ments in which an employer has agreed to make pay- ments on account of his employees to health and welfare and pension funds. Malcolm Young testified that the members of the As- sociation are concerned over their perception that in- creasing amounts of work in the Omaha area, both in the heavy-highway and building construction areas are not being performed under the collective-bargaining agree- ments maintained by the Association and the Omaha Building Contractors Employers Association. Young stated that the Association needed the requested informa- tion in order to track the operations of the hiring hall, and the dealings between the Union and other contrac- tors. By using this information the Association could de- termine whether the Union is entering into agreement with others in violations of the hiring hall and most-fa- vored-nation provisions of the collective-bargaining agreement. In addition, Young testified that the Associa- tion was concerned with possible employer liability under antidiscrimination laws and Nebraska's right-to- work statute. It is clear to me that, based on Young's credible testi- mony, the Association had reasonable cause to seek the information requested. The hiring hall data sought are relevant in view of the potential liability of employers in any hiring hall situation. Further, the information sought on contracts entered into between the Union and other employers is reasonably related to the Association's en- forcement of its most-favored-nation clause. NLRB v. Acme Industrial Co., 385 U.S. 435 (1967); Associated Gen- eral Contractors of California, 242 NLRB 891 (1979). There is no question that the Union is under obligation to supply that information to the Association here; Plas- terers Local 346 (Brawner Plastering), 273 NLRB 1143 (1984); Asbestos Workers Local 80 (West Virginia Insula- tors Assn.), 248 NLRB 143 (1980), Electrical Workers IBEW Local 497 (Apple City Electric), 275 NLRB 1290 (1985). Of the arguments made by the Respondent Union, the only one with any possible merit is its position that re- lease of the names of union members could lead to retal- iation by employers. In the face of years of collective bargaining, I do not believe that any real threat to union members exists; Local 497, supra. I find, therefore, that Respondent Union has violated Section 8(b)(3) of the Act by failing and refusing to supply the information requested in the Association's letter of 26 September 1986. IV THE REMEDY Having found that Respondent has violated the Na- tional Labor Relations Act, I shall recommend that it cease and desist therefrom , and that it take the following affirmative action designed to effectuate the policies of the Act. Having found that Respondent has unlawfully refused to furnish information to the Association, I shall recom- mend that it forthwith forward the requested information to the Association.2 CONCLUSIONS OF LAW 1. Heavy Contractors Association, Inc. is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. Laborers International Union of North America, Local No. 1140 is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent has violated Section 8(b)(3) of the National Labor Relations Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondent Laborers International Union of North America, Omaha, Nebraska, its officers, agents, and representatives, shall 1. Cease and desist from (a) Failing and refusing to supply relevant information to the Association. (b) In any like or related manner failing or refusing to fulfill its obligations to bargain collectively with the As- sociation. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Forthwith furnish to the Association the informa- tion requested in the Association's letter of 26 September 1986. (b) Post at its facility in Omaha, Nebraska, copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. 2 1 appreciate the fact that some of the information may not be avail- able, but I will leave the determination of what is or is not available to the compliance stage of this proceeding I am not convinced in this case that the General Counsle's request for a so-called visitatorial provision is either necessary or potentially effective I therefore deny the request for such a provision 3 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 4 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 " LABORERS (HEAVY CONTRACTORS) (c) Preserve and, on request, make available to the Board or its agents for examination and copying ,- all pay- roll records, social security payment records, timecards, personnel records and reports , and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 691 WE WILL NOT fail or refuse to give relevant informa- tion to the Heavy Contractors Association, Inc. WE WILL NOT in any like or related manner fail to perform our legal bargaining obligations to the Associa- tion. WE WILL immediately furnish the information request- ed to the Association. LABORERS INTERNATIONAL UNION OF NORTH AMERICA 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.