M. Scher & Son, Inc.

688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD M. Scher & Son, Inc. and International Brotherhood of Electrical Workers, Local 1249, AFL-CIO. Case 3-CA-13444 30 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT On 26 May 1987 Administrative Law Judge Joel P. Biblowitz issued the attached decision. The Re- spondent filed exceptions. 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 has decided to affirm the judge's rulings, findings,' and conclu- sions 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, M. Scher & Son, Inc., Albany, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' In agreeing with the judge's conclusion that the Union met its burden of showing that it had a reasonable objective basis for believing Mohawk Valley Utility Construction Co. might be an alter ego of the Respondent, we note additional evidence in the record supporting his conclusion. Thus, Union Business Manager Andrew Mihok identified Scher equip- ment and John Tennis (who identified himself as a Mohawk employee) at the Albany, New York jobsite in early 1982 Mihok testified that the Scher equipment on the site, such as the vernier saw Tennis was using at the time, was intended for below-ground work even though the subcon- tracting Scher was allegedly designated to perform for Mohawk was Inn- ited to above-ground work Moreover, when Mihok asked Tennis by whom he was employed, Tennis contradicted himself, responding first that he was employed by Scher and later, when questioned about union membership, stating that he was an employee of Mohawk. Mihok also testified that Tennis told him that two or three other employees doing below-ground work at the site were working under Tennis' direction. Robert A. Ellison, Esq., for the General Counsel. Edward L. Bookstein, Esq. (Kohn, Bookstein & Karp), for the Respondent. Charles E. Blitman, Esq. (Blitman & King), for the Charging Party. DECISION STATEMENT OF THE CASE JOEL P. BIBLOwrrz, Administrative Law Judge. This case was heard by me on 16 March 1987 in Albany, New York. The complaint and notice of hearing, that issued on 4 November 1986,' and was based on a charge filed on 22 September by International Brotherhood of Elec- ' Unless indicated otherwise , all dates referred to are for the year 1986. trical Workers, Local 1249, AFL-CIO (the Union), al- leges that M. Scher & Son, Inc. (Respondent), violated Section 8(a)(1) and (5) of the Act by failing and refusing to supply the Union with necessary and relevant infor- mation it requested of Respondent about 27 August. On the entire record, I make the following FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION STATUS There being no dispute, I find that Respondent is an employer within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. FACTS AND ANALYSIS The record is comprised of the testimony of Andrew Mihok, the Union's business manager, as well as exhibits introduced by the General Counsel. The Union repre- sents outside electrical employees in a geographic area north and west of Westchester County, New York. On 11 December 1973 Martin Scher, as president of Respondent, executed a Letter of Assent-A with the Union. This letter stated that he authorized New York State Line Construction Contractors, Inc., as its collec- tive-bargaining representative, for all matters contained in or pertaining to the current approved Outside Electri- cal Work Agreement between Construction Contractors, Inc. and the Union. The effective date of the authoriza- tion is given and it states further: "It shall remain in effect until terminated by the undersigned employer giving notice to the New York State Line Construction Contractors, Inc. and to the Local Union at least one hundred fifty (150) days prior to the then current anni- versary date of the aforementioned approved labor agreement." In April 1983 Scher, as president of Respondent, and the Union executed another Letter of Assent-A by which Respondent authorized Northeastern Line Constructors Chapter, NECA (the Association), as its collective-bar- gaining representative for all matters contained in or per- taining to the current approved Outside Electrical Work Agreement between the Association and the Union. The letter is effective 3 April 1983 and, again, remains effec- tive unless terminated by Respondent at least 150 days prior to the anniversary date of the agreement by notice to the Association and the Union. Mihok testified that, to his knowledge, Respondent never revoked or terminated these letters of assent. Respondent introduced no evi- dence that it ever did so. At the time of the hearing, the Union and the Associa- tion were parties to three separate collective -bargaining agreements: The Commercial Agreement which covers private employers performing transmission, substation, or cable work; the Outside Utility Agreement,2 with utility 2 Mihok testified that the phrase "Outside Electrical Work Agree- ment" as appears in 1973 and 1983 Letters of Assent, encompasses all three agreements-Commercial, Utility, and Traffic Signals He also testi- fied that until 1982, all three constituted a single agreement At that time, a separate 1-year collective-bargaining agreement was established for traf- Continued 286 NLRB No. 61 M SCHER & SON companies performing similar work, and the Lighting, Traffic Signal System, and Maintenance Agreement which covers work performed for the State or private owners on traffic signals. The prior two agreements were effective from 1986 through 1988; the latter agreement was effective from 1 May 1985 Through 30 April 1987 During the periods covered by these agreements, Re- spondent performed work encompassed by these agree- ments and paid the wage rates provided by these agree- ments transmitted to the Union the fringe benefits re- quired by the agreements, forwarded to the Union its employees weekly union assessments, adhered to the Union's exclusive hiring hall as provided by the agree- ments, and complied with the agreements' terms regard- ing stewards and foremen. Several of the provisions in the Commercial, Utility, and Traffic Signal Agreements apply to alleged alter ego situations: section 2.04 provides: "`The Employer recog- nizes the Union as the exclusive representative of all of its employees performing the work with [sic] the juris- diction of the Union." Section 3.02 provides that the sub- letting, transfer, or assignment by the Employer to any person or firm not having a collective-bargaining rela- tionship with an IBEW union would be deemed a mate- rial breach of the agreement. Section 4.01 provides: In order to protect and preserve, for the employees covered by this Agreement, all work heretofore performed by them, and in order to prevent any device or subterfuge to avoid the protection and preservation of such work, it is hereby agreed as follows: if and when the Employer shall perform any on-site construction work of the type covered by this Agreement, under its own name or under the name of another, as a Corporation, Company, Partnership or any other business entity, including a joint venture, wherein the Employer through its of- ficers, directors, partners, or stockholders, exercises either directly or indirectly, management, control or majority ownership, the terms and conditions of this Agreement shall be applicable to all such work. The agreements also provide for an exclusive hiring hall and that equipment owned or hired by the employer are to be operated and driven by employees under the terms of the agreements. Commencing about early 1982, Mihok observed, or heard from others of the operation of, a new nonsigna- tory employer-Mohawk Valley Utility Corporation (Mohawk). At that time, Mihok visited a jobsite in north- ern Albany where a feeder line had accidently been cut. A traffic signal was being installed for a shopping mall, work covered under the Traffic Signal Agreement.3 fic signal work with reduced rates to assist the covered employers in ob- taining work 3 As noted, supra, in fn 2, beginning in 1982, the parties had a separate Traffic Signal Agreement Therefore, in 1 his situation, it is not clear whether this work would have been covered by the overall agreement or the Traffic Signal Agreement However, it appears to be covered work if it were performed by Respondent 689 Mihok observed Respondent's trucks and equipment at the jobsite and saw an individual, John Tennis, operating one of these pieces of equipment. He asked Tennis if he was a member of the Union and Tennis said that he was not. Mihok then asked him how he could work for Re- spondent without being a member of the Union; Tennis said that he was employed by Mohawk, not Respondent. The Dodge Reports are weekly reports relating to the construction industry that lists work that is being bid, the type and location of the work, the successful bidder, starting dates, and other relevant information. From these reports, Mihok learned that Mohawk was bidding for, and obtaining, certain contracts and subcontracting the above-ground work of those contracts to Respond- ent, while performing the below-ground work. In about 1983 Mihok learned from the telephone directory that the address of Respondent and Mohawk were the same. He also heard "just rumors" that Mohawk was owned by the wives of Paul and Martin Scher who, Mihok as- sumes, are the owners of Respondent. Mihok testified that from about 1983 until about 1986 Mohawk per- formed the below-ground work on a number of jobs, while subcontracting the above-ground work to Re- spondent. Since 1986, Mohawk has been performing almost all the work and subcontracting very little to Re- spondent. Since 1983, Mihok has learned from the Dodge Re- ports, and other sources, of a number of situations where Mohawk subcontracted above-ground work to Respond- ent; more specifically in Oneida, Utica, Rockland County and Fayettville, New York. He learned of the Oneida job about May 1982, at which time some union members informed him that Respondent's equipment was perform- ing traffic signal work, but the employees operating the equipment were not union members. The Utica job also involved traffic signal work in about 1984. Some union members informed Mihok of the job and he learned from the Dodge Reports that Mohawk had obtained the job. Mihok learned from the assessment remittance forms sent by Respondent that one employee of Respondent, who was a member of the Union, Russell Niecel, was em- ployed on the job. Mihok likewise learned in 1984 that Niecel was performing the above-ground work on the Rockland County job, also a Mohawk job. In February 1985, Mihok was informed that Mohawk was performing traffic signal work at Fayetteville; he sent two of his staff members to the job and they reported that although the equipment being used on the job had no identifiable markings, Roy Oakes, an employee of Respondent and a member of the Union's inside sister local, was employed there. Mihok testified that on one or two occasions during this period, traffic cones (used to barricade traffic or manholes) with Respondent's name were being used on Mohawk's jobs. The cumulative effect of the above caused the Union to suspect that Mohawk was an alter ego of Respond- ent.4 Because of this, on 22 November 1985, the Union sent the following letter to Respondent: 4 Mihok testified that if Mohawk was an alter ego of Respondent, bar- gaining unit work was being performed by nonbargaimng unit employees and Respondent would owe moneys to the Union for this work 690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD It has come to this Union's attention that M. Scher & Son, Inc. (SCHER or its principals) have an ownership interest in or a relationship with Mohawk Valley Utility Construction Co. ("MOHAWK") and that company may be perform- ing work of the type within the bargaining unit covered by the collective bargaining agreement be- tween this union and "SCHER." In order for this local to police the existing collective bargaining agreement, it is necessary for us to have the follow- ing information from you: The letter then specified 22 items of requested informa- tion, including, inter alia, the officers, owners, employ- ees, jobs, and equipment of Respondent and Mohawk, and any transfer of funds between the two. The letter re- quested an answer within a week. By letter dated 27 No- vember 1985, Respondent responded to Mihok's request: We have received your letter dated November 22, 1985 concerning the collective bargaining agree- ment. After reviewing the information requested we find it impossible to respond to the large amount of information requested within the one week time frame suggested by your letter. We are in the midst of the holidays and other commitments preclude us from responding within the very short time you have allowed for such a vast amount of information. We will, however, assemble the information avail- able and respond to your request as soon as possi- ble. Your consideration for awaiting our detailed re- sponse is appreciated. About January, Mihok met Martin Scher and asked him when he would send the requested information to the Union; Scher answered that he would forward the infor- mation to the Union as soon as possible. On 4 August the Union filed an unfair labor practice charge against Re- spondent (later withdrawn) alleging an 8(a)(5) violation for refusing to furnish information requested by the Union. By letter dated 27 August, counsel for the Union wrote to Respondent, enclosing a copy of the Union's 22 November 1985 letter, stating: "the Union respectfully requests that you provide the information requested in Business Manager Mihok's enclosed letter as soon as practicable." Respondent never supplied any of the infor- mation requested. In 1973 and 1983 Respondent, by Martin Scher, its president, executed Letters of Assent-A authorizing NECA to act as its collective-bargaining representative "for all matters contained in or pertaining to the current approved Outside Electrical Work Agreement" between the Union and NECA. The letter provided further that it shall remain in effect until terminated by Respondent by notice to NECA and the Union at least 150 days prior to the anniversary date of the agreement. Mihok testified that, to his knowledge, no such notice was provided by Respondent; as Respondent chose to produce no evi- dence on this issue, or any other issue, I find that Re- spondent never terminated these letters in a timely fash- ion. Just as important in establishing Respondent's obli- gations and intent is that Respondent continues to adhere to the provisions of these agreements by paying the proper wages and fringes and forwarding the proper re- ports to the Union, as provided in these agreements. Leapley Co., 278 NLRB 981 (1986) and Vincent Electric Co., 281 NLRB 903 (1986), are precisely on point; in fact they involve the same International union's Letter of Assent-A containing, in all material respects, exactly the language involved herein. In Leapley, the administrative law judge, as affirmed by the Board, stated: Unquestionably, these forms could have been writ- ten more clearly, but, it is quite obvious that it was intended that the authorization should continue in effect until an affirmative action was taken by the employer, that is, until the employer notified the Association and the Union, in writing, 150 days before "the then current anniversary" of the agree- ment in effect when the authorization was signed that the employer desired to cancel the authoriza- tion. There is no indication that it was intended that the authorization would automatically expire on the termination of the labor agreement in effect when the authorization was signed. Likewise, in Vincent Electric, the Board stated: IBEW local unions have been utilizing letters of assent identical in all material respects to the letter of assent signed by this Employer for over 20 years, and the Board consistently has held that an employ- er who signs a Letter of Assent-A has agreed to become part of a multiemployer bargaining group. The Board cited with approval a decision involving a Letter of Assent-A that noted "that the assents looked toward future contracts as well as current ones." The Board also cited, with approval, Central New Mexico Chapter, 152 NLRB 1604 (1965), in which they discussed the language contained in the Letter of Assent-A: "the clear meaning of which is to continue the authority re- posing in the [NECA] Chapter to represent a signatory unless such authority is expressly withdrawn." As Re- spondent never withdrew the authority granted in the 1973 and 1983 Letters of Assent, Respondent is bound to the terms of the existing Commercial, Utility, and Traffic Signal Agreements. Under well-settled Board law, an employer must pro- vide 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 responsi- bilities as the employees' exclusive bargaining representa- tive." Associated General Contractors of California, 242 NLRB 891, 893 (1979). When the requested information regards the terms and conditions of employment of em- ployees actually represented by the requesting union, it is presumptively relevant and necessary, and must be pro- duced. However, when the requested information con- cerns operations or employees not represented by the union, there is no such presumption. Ohio Power Co., 216 NLRB 987 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976); Bohemia, Inc., 272 NLRB 1128 (1984). As the Board M SCHER & SON 691 stated in Ray C. Lapp Air Conditioning, 270 NLRB 641 (1984): A union must demonstrate reasonable or probable relevance whenever the requested information os- tensibly relates to employees outside the represented bargaining unit even though the information may show ultimately that the employees are part of the bargaining unit because of the existence of a single employer or an alter ego relationship. In Bohemia, supra, the employer had a unionized and a nonunion plant 30 miles apart. He temporarily closed the unionized plant after the union refused his request to reduce a contractually required wage increase; wages were decreased at the nonunion plant, and it remained open. Some of the union employees informed the union of their "suspicion" that work had been transferred from their plant to the nonunion plant. On the basis of this suspicion, the union requested information from the em- ployer concerning the operation at both plants. The Board found no violation: "the Union's request for infor- mation was based solely on the suspicion of some . . employees that work had been transferred." They found "the absence of any objective basis for believing unit work was being diverted." The instant matter is distinguishable; while the Union's evidence is not enough to establish that Mohawk is an alter ego of Respondent (as it need not here establish), the General Counsel has established that the Union had an objective factual basis for believing that Mohawk was an alter ego or single employer of Respondent. Mohawk was employing Respondent's employees, trucks, equip- ment, and traffic cones on its jobs; they were often on the same jobs and maintained the same office address, more than the mere suspicion as in Bohemia, supra. In a similiar case, Pence Construction Corp., 281 NLRB 322 (1986), the union's business agent collected a lot of infor- mation regarding the connection between two employ- ers, one of whom had a bargaining relationship with his union. Included in this information was that the union- ized company was the 100-percent owner of the non- union company, that they had the same address, and that there was an occasional interchange of employees and supplies. The Union's request for information regarding this relationship was denied by the employer. The ad- ministrative law judge (as affirmed by the Board) stated that in situations such as that, where the information was not presumptively relevant, the union had the burden to establish the relevancy of the requested information "as an aid to investigation of a contract violation." In finding a violation, the judge quoted Walter N. Yoder & Sons v. NLRB, 754 F.2d 531 at 536 (4th Cir. 1985), enfg. 270 NLRB 652 (1984): "To establish that the Information was relevant, the union must show that it had a reasonable belief that enough facts existed to give rise to a reasona- ble belief that the two companies were in legal contem- plation a single employer." I find that the Union had sat- isfied this burden at the time it made its request for the information. I therefore find that Respondent's refusal to comply with the Union's request for information, con- tained in its letters of 22 November 1985 and 27 August 1986, violates Section 8(a)(1) and (5) of the Act. CONCLUSIONS OF LAW 1. Respondent M. Scher & Son, Inc. 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. By failing and refusing to give the Union, in writ- ing, the information requested in its letters of 22 Novem- ber 1985 and 27 August 1986, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) 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 to effectuate the purposes of the Act. In the complaint and in its brief, the General Counsel requested the inclusion in the remedy of a visitatorial clause, in effect, allowing the Board to engage in discov- ery under the Federal Rules of Civil Procedure in order to monitor compliance. However, no special circum- stances are asserted or argued to justify such a clause in the instant case The Board has previously indicated such clauses will not be granted in a pro forma manner. See O. L. Willis, Inc., 278 NLRB 203 (1986); United Cloth Co., 278 NLRB 583 (1986). In the absence of any special circumstances shown here, no visitatorial clause will be provided. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed5 ORDER The Respondent, M. Scher & Son, Inc., Albany, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with International Brotherhood of Electrical Workers, Local 1249, AFL- CIO, by refusing to furnish the Union the information re- quested in its letters of 22 November 1985 and 27 August 1986. (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. 6 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 692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) On request, bargain collectively with the Union by furnishing to it in writing the information requested in its letters of 22 November 1985 and 27 August 1986. (b) Post at its office and other facilities in Albany, New York, copies of the attached notice marked "Ap- pendix."6 Copies of the notice, on forms provided by the Regional Director for Region 3, after being signed by Respondent's authorized representative, shall by posted by 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 Respondent to ensure that the notices are not altered, defaced, or cov- ered 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 International Brotherhood of Electrical Workers, Local 1249, AFL- CIO (the Union) by refusing to furnish the information sought by the Union, as stated below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL furnish to the Union the information sought by the Union in its letters of 22 November 1985 and 27 August 1986, including information concerning the own- ership, operation, equipment, employees, and business re- lationship between M. Scher & Son, Inc. and Mohawk Valley Construction Corporation. M. SCHER & SON, INC.