Crittenden Construction Co., Inc.

110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Crittenden Construction Company, Inc. and Local 25, International Association of Bridge, Struc- tural and Ornamental Iron Workers, AFL-CIO. Case 7-CA-26682 14 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 25 September 1987 Administrative Law Judge Claude R. Wolfe issued the attached deci- sion. The Respondent filed exceptions, and the Charging Party filed an answering brief to the ex- ceptions. 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, Crittenden Construction Company, Inc., Alpena, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Joseph P. Canfield, Esq., for the General Counsel. James D. Florip, Esq., for the Respondent. Samuel C. McKnight, Esq., for the Charging Union. DECISION STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge. This proceeding was heard by me at Alpena, Michigan, on 16 July 19871 pursuant to charges filed on 24 February and complaint issued on 2 April. The complaint alleges that Crittenden Construction Company, Inc. (Respondent) violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing to furnish Local 25, Interna- tional Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (the Union or the Iron Work- ers) with information necessary and relevant to the Union's performance of its function as the exclusive col- lective-bargaining representative of certain of Respond- ent's employees. Respondent denies its conduct violated the Act as alleged. On the entire record,2 and after care- fully considering the posttrial briefs of the parties, I make the following r All dates are 1987 unless otherwise indicated 2 Certain errors in the transcript have been noted and corrected. FINDINGS OF FACT I. JURISDICTION Respondent is a Michigan corporation , with principal office and place of business at 2074 M-32, Alpena, Michigan, and has been at all times material engaged in performing general construction work. During the calen- dar year ending 31 December 1986, a representative period, Respondent, in the course and conduct of its business operations, had gross revenues in excess of $1 million and purchased and caused to be transported and delivered to its Alpena, Michigan place of business, or at various of its jobsites in the State of Michigan, goods and materials valued in excess of $50,000 that were transport- ed and delivered to the Michigan locations directly from points located outside the State of Michigan . Respondent is now, and has been at all times material, an employer engaged _in the commerce within the meaning of Section 2(2), (6), and (7) of the Act. IL LABOR ORGANIZATION The Union is and, has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE A. Relevant Facts On 16 December 1974 the Board certified Local 486, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Teamsters) as the exclusive representative of all employees in the following unit for purposes of collective bargaining: All full-time and regular part-time construction em- ployees, including truck drivers, equipment opera- tors, steel workers and lead men, employed by the Employer at its Alpena, Michigan location; but ex- cluding carpenters, office clerical employees, pro- fessional employees, and guards and supervisors as defined in the Act. Respondent and the Teamsters have since negotiated a series of collective-bargaining agreements covering these employees, including an agreement expiring 30 April 1987 that was in effect at the time of the matters at issue. Respondent subsequently recognized and became party to collective-bargaining agreements with Local 25, Inter- national Association of Bridge , Structural and Ornamen- tal Iron Workers, AFL-CIO (the Iron Workers). The latest such agreement expired 31 May 1987 . This last agreement with the Iron Workers, like the preceding agreements, contains a concluding addendum reading, "Signed with the following exception : Contract not valid where ever Teamsters Contract supersedes as per Na- tional Labor Relations Board ruling ." The ruling re- ferred is apparently the 1974 certification of the Team- sters. Article 11, section 11 of the Iron Worker contract sets forth that Respondent agrees to hire journeymen or apprentice iron workers to perform work covered by the contract. Article 2 of the agreement provides that the 287 NLRB No. 17 CRITTENDEN CONSTRUCTION CO. agreement covers field erection and construction work within the Iron Workers' jurisdiction as set forth in the charter grant issued to the Iron Workers by the Ameri- can Federation of Labor (AFL), and further provides the Iron Workers agree to furnish competent workmen to perform the work. The charter grant is printed as part of the agreement, and lists hundreds of specific types of work within the jurisdiction of the Iron Workers , includ- ing kiln construction. Respondent had previously worked Iron Workers members on various jobsites, but did not do so on the La Farge Cement Plant job that began about 19 January 1987. This job was staffed by Teamsters within a few days of the start of the La Farge project. Bruce Critten- den, Respondent's president, testified there was kiln maintenance involved . Lawrence Sedrowski, Iron Work- ers business agent, called Crittenden and asked what kind of work was being performed on the La Farge job. Crit- tenden told Sedrowski the Respondent was not doing Se- drowski's work and that Crittenden was not going to tell him what work was being done . Thereafter, on 2 Febru- ary 1987, Sedrowski dispatched a letter to Crittenden reading, in pertinent part, as follows: A. [T]he Union wishes to address various con- cerns relative to work being performed at the La- farge Cement Plant Alpena, Michigan. I.) The Union is aware that both the No. 5 & 6 kiln groups within the facility are being recondi- tioned and reworked . The Union is further aware that Crittenden Construction has been onsite at the Cement Plant since January 19, 1987 doing such kiln reconditioning and rework. As such, the Union requests a generic description of the aforementioned reconditioning. II.) In order to facilitate the proper administra- tion of the bargaining agreement please provide the Union with copies of any and all blueprints, pur- chase orders, bid documents, job contracts, or any other similar documention [sic] which contain picto- rial or other visual descriptions of the work scope involved. III. A) The Union further requests any and all written copies of current manhours worked on this reconditioning project by craft classification , as well as any and all copies of written projections of esti- mated work and manhours worked for each craft classification needed to complete this reconditioning project. III. B) The Local Union will pay for all reasona- ble costs for the administrating and copying of all such documents. IV.) Please consider this correspondence a formal and written3 Grievance under the terms and provi- sions of the collective-bargaining Agreement be- tween Iron Workers Local # 25 and the Crittenden Construction Company. The Local Union contends that the Crittenden Construction Company is violating the jurisdiction 8 Whether this document is a grievance timely filed and in the form required by the contract is irrelevant to the issue before me 111 and work preservation provisions of the Agreement causing a substantial loss of work opportunities. It is necessary that the Local Union obtain the previous- ly requested information in order that both the col- lective-bargaining Agreement and the Grievance may be properly administered and evaluated. V.) The Local Union seeks complete equitable and compensatory relief (including monetary reim- bursement to its members) for each and every Iron Worker denied work opportunities as a result of the Company's Contract violations. VI.) The Union requests that the Employer re- spond to its concerns over Contract administration and Contract violations . Please provide this infor- mation via certified mail within ninety-six (96) hours after receipt of the Union's request. On 4 February Crittenden replied: In regard to your certified letter dated February 2, 1987 received by Crittenden Construction Co. Inc. today, we have been instructed by Mr. Bob Lee of the Michigan State Building Trades Council to refer all phone calls and communications from the trades to him. This drew the following response from Sedrowski on 6 February, in relevant part: This correspondence refers to your Company's February 4, 1987 response to the Local Union's grievance dated February 2, 1987. As was previous- ly indicated, the Collective Bargaining Agreement provides a mechanism for the peaceful adjustment of grievances and disputes . This mechanism is for- mally known as the "Joint Grievance Board". This Board is an internally functioning appartus [sic] to- tally independent and mutually exclusive of the Michigan State Building Trades Council. It would behoove the Company to recognize this fact and reply in good faith to the request contained in the February 2, 1987 notification. Moreover, the Crittenden Construction Co., Inc . should consider this latest correspondence a formal and second noti- fication of grievance between the Company and the local Union. In addition, the Union must again emphasize that its concerns are both legitimate and pressing. En- closed please find the original notice of grievance. The Union requests a proper response to its con- cerns regarding Contract administration & Contract violation. Please provide this answer via certified mail within ninety-six (96) hours after receipt of this notice. The complaint alleges, Respondent admits, the evi- dence shows, and I find that the Iron Workers, by Se- drowski, on 2 and 6 February 1987 and continuing to date has requested Respondent to furnish it with infor- mation concerning the work being performed and cur- rent and projected manhours for each craft working at 112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the La Farge job, and that Respondent failed and refused to furnish this requested information. B. Discussions and Conclusions The only issue before me is whether the Iron Workers is entitled to the information requested. I therefore am not confronted with and need not reach the issue of who is entitled to the work. The Iron Workers had a valid and enforceable collec- tive-bargaining agreement with Respondent when the in- formation was requested and when the request was denied. John Deklewa & Sons, 282 NLRB 1375 (1987) The Iron Workers has the responsibility of administering that contract and evaluating and processing grievances. Cltnchfield Coal Co., 275 NLRB 1384 (1985). Respondent is statutorily obliged to furnish requested information that is relevant and reasonably necessary to the Iron Workers' performance of these responsibilities. NLRB v. Acme Industrial Co, 385 U.S. 432 (1967); NLRB v. Truitt Mfg. Co, 351 U.S 149 (1956) Sedrowski's 2 February letter contains a request for information for contract ad- ministration purposes, a request for information for grievance evaluation and processing purposes, and an ex- press grievance contending Respondent has violated the contract and caused a loss of work for employees4 repre- sented by the Iron Workers. The Board in W. L. Molding Co., 272 NLRB 1239, 1240 (1984), succinctly summarized the law applicable to situations like that here presented in the following terms: [A] broad discovery-type standard is applicable to requests for information relevant to a union's func- tions of negotiating and policing compliance with a collective-bargaining agreement NLRB v Acme In- dustrial Co, 385 U.S 432, 437 (1967); General Motors v. NLRB, 700 F.2d 1083, 1088 (6th Cir. 1983); NLRB v. Rockwell-Standard Corp., 410 F.2d 953, 957 (6th Cir. 1969) "[I]t is not the Board's function in this type case to pass on the merits of the Union's claim that Respondent breached the collective-bargaining agreement or . . . committed an unfair labor practice." NLRB v. Rockwell-Stand- ard Corp., 410 F.2d at 957. "Thus, the union need not demonstrate actual instances of contractual vio- lations before the employer must supply informa- tion." Boyers Construction Co., 267 NLRB 227, 229 (1983). "Nor must the bargaining agent show that the information which triggered its request is accu- rate, nonhearsay, or even ultimately reliable." Ibid. "The Board's only function in such situation is in `acting upon the probability that the desired infor- mation was relevant, and that it would be of use to the union in carrying out its statutory duties and re- sponsibilities "' NLRB v. Rockwell-Standard Corp., 410 F.2d at 957 quoting NLRB v. Acme Industrial Co., 385 U.S. at 437. Accord. General Motors v. NLRB, 700 F.2d at 1088. [Footnote omitted ] 4 It is elementary that individuals need not be actually working to be employees within the meaning of the Act Little Rock Crate & Basket Co, 227 NLRB 1406 (1977) There is no presumption that information concerning work being performed by nonunit employees is relevant, but here the Iron Workers have reasonable grounds to suspect that work its unit members are entitled to per- form has been diverted to the Teamsters unit. The infor- mation sought is relevant to whether or not any work being performed on the La Farge job is of a type that the contract between Respondent and the Iron Workers requires be assigned to employees represented by the Iron Workers, and there is a strong probability that this information would be useful to the Iron Workers in eval- uating whether there has possibly been a violation of the contract and whether proceeding with a grievance is warranted. Accordingly, the requested information must be produced Respondent's failure and refusal to produce it therefore violated Section 8(a)(5) and (1.) of the Act. Bentley-Jost Electric Corp., 283 NLRB 564 (1987); Pence Construction Co, 281 NLRB 322 (1986); Davis Accoustical Co, 280 NLRB 1275 (1986). With respect to Respond- ent's contention that a refusal to furnish information in violation of Section 8(a)(5) of the Act does not constitute a violation of Section 8(a)(1) of the Act, it is sufficient to observe it is well established that such conduct contra- venes both sections of the Act 5 CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Iron Workers is a labor organization within the meaning of Section 2(5) of the Act. 3 By refusing to furnish Iron Workers with the infor- mation requested by letters of 2 and 6 February 1987, Respondent has engaged in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER The Respondent, Crittenden Construction Company, Inc., Alpene, Michigan, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain with Local 25, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, as the exclusive bargaining repre- sentative of employees engaged in certain work de- scribed in the most recent collective-bargaining agree- ment between Respondent and Iron Workers by refusing to furnish Iron Workers with information it requests that is relevant and reasonably necessary to the administration of the collective-bargaining agreement and for the eval- uation and processing of grievances. 5 See, e g, Stephen Oderwald, Inc, 284 NLRB 277 (1987) a 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 CRITTENDEN CONSTRUCTION CO. (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) Immediately furnish the Iron Workers with the in- formation it requested by letters of 2 and 6 February 1987. (b) Post at its Alpena, Michigan facility, copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive 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. (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.8 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." 8 The visitatorial clause requested by the General Counsel is unneces- sary in the circumstances of this case. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 113 WE WILL NOT refuse to bargain with Local 25, Inter- national Association of Bridge, Structural and Ornamen- tal Iron Workers, AFL-CIO, as the exclusive bargaining representative of employees engaged in certain work de- scribed in our collective-bargaining agreement with the Union, by refusing, on request, to furnish it with infor- mation relevant and reasonably necessary to the adminis- tration of the agreement and/or the evaluation and proc- essing of grievances. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL immediately furnish the above-named Union with the information it requested by letters of 2 and 6 February 1987. CRITTENDEN CONSTRUCTION COMPANY, INC.