Electrical Energy Services, Inc.

ELECTRICAL ENERGY SERVICES 925 Electrical Energy Services, Inc. and Sheet Metal Workers International Association, Local Union No. 49, AFL-CIO. Case 28-CA-8806 May 11, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On January 20, 1988, Administrative Law Judge Michael D. Stevenson issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counset filed cross-exceptions and a, statement in support, and the Respondent filed an answering brief to the General Counsel's cross-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 briefs and has decided to affirm the judge's rulings, findings, and conclusions l and to adopt the recommended Order.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Electrical Energy Services, Inc., Farmington, New Mexico, its officers, agents, successors, and assigns, shall take the action set forth in the Order. In adopting the judge's decision, we find that the Respondent did not establish that compliance with the Union's request for information was unduly burdensome. Aside from the Respondent's bare assertion in its April 10, 1987 letter to the Union some 3-1/2 months after the Union's initial request for the information that the request was "burdensome and oppressive" the Respondent failed to present any evidence to support its claim that the request was burdensome Thus, the information, which we agree is relevant and necessary for the Union to properly perform its duties, must be provided to the Union. To the extent that costs and bur- dens are incurred in the provision of this information, the allocations of such costs can be resolved at the compliance stage of the proceeding. See Minnesota Milting Co. 261 NLRB 27 (1982), enfd sub nom. Oil Workers Local 6-418 v. NLRB, 711 F.2d 348, 363 (DC Cm. 1983) 2 The Respondent in its exceptions contends that the judge erred in failing to specifically consider whether each of the requests in the Union's questionnaire was for relevant information We have reviewed the questionnaire in its entirety and find that each request was for infor- mation which is relevant to and necessary for the Union's performance of its function as the exclusive collective-bargaining representative of the employees m the unit. Louis S. Harris, Esq., for the General Counsel. George Cherpelis and Timothy L. Salazar, Esqs. (Cherpelis & Associates), of Albuquerque, New Mexico, for the Respondent. John L. Hollis, Esq. (Kool, Kool, Bloomfield & Hollis), of Albuquerque, New Mexico, for the Charging Party. _ 288 NLRB No. 108 DECISION STATEMENT OF THE CASE MICHAEL D. STEVENSON, Administrative Law Judge. This case was tried before me at Albuquerque, New Mexico, on 20 October 1987, 1 pursuant to a complaint issued by the Regional Director for the National Labor Relations Board for Region 28 on 5 June and which is based on a charge filed by Sheet Metal Workers Interna- tional Association, Local Union No. 49, AFL-CIO (the Union) on 29 April. The complaint alleges that Electrical Energy Services, Inc. (EESI or Respondent) has en- gaged in certain violations of Section 8(a)(1) and (5) of the National Labor Relations Act. Issue Whether Respondent has refused to furnish to the Union certain requested information that is relevant to and necessary for the Union's performance of its function as the exclusive collective-bargaining representative of the employees in the unit. 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. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent.2 On the entire record of the case, and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. RESPONDENT'S BUSINESS Respondent admits that it is a New Mexico corpora- tion engaged in the business of industrial construction and maintenance and having an office and place of busi- ness located in Farmington, New Mexico. It further admits that during the past year, in the course and con- duct of its business, it has purchased and received prod- ucts, goods, and materials valued in excess of $50,000 di- rectly from sources outside the State of New Mexico. It further admits that during the past calendar year, in the course and conduct of its business operations, it has per- formed services valued in excess of $50,000 in States other than the State of New Mexico. Accordingly, it admits, and I find, that it is an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that Sheet Metal Work- ers International Association, Local Union No. 49, AFL- CIO is a labor organization within the meaning of Sec- tion 2(5) of the Act. 1 All dates refer to 1987 unless otherwise indicated. 2 Throughout the transcript, I am referred to as "Hearing Officer." I restore my proper title as "Judge Stevenson." 926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD HI. THE ALLEGED UNFAIR LABOR PRACTICE A. The Facts On 29 December 1986, George Gilliland, business rep- resentative for the Union, sent to Thomas D. Akins, an official of Respondent, a document entitled "Question- naire and Request for Documents" (G.C. Exh. 3). Con- sisting of 50 questions, some of which contain multiple parts, the 7-1/2 page document is published in Appendix I to this decision. Gilliland, the sole witness at the hear- ing, testified on behalf of the Genera/ Counsel. Among other matters covered was the reason for sending the questionnaire, its origin, and the results. To these and other matters I now turn. The Union is party to a collective-bargaining agree- ment with an employer's organization known as New Mexico Sheet Metal Contractors Association, Inc. Effec- tive between 1 April 1986 and 31 March 1988, this agree- ment binds Respondent and other signatory contractors (G.C. Exh. 2). Article 10 of the agreement establishes a grievance procedure, which includes, where necessary, a Local Joint Adjustment Board (sec. 5, p. 20). When es- tablished to resolve a grievance, the board consists of three members of the Union and three members of the Contractors' Association. Included among Gilliland's re- sponsibilities were policing of the contract and, if neces- sary, filing of grievances to enforce its provisions. In early December, Gilliland received a telephone call from 0. H. Fredenburg, an official of Sheet Metal Spe- cialties, a signatory contractor. Fredenburg complained that EESI had established a nonunion company that had recently underbid Sheet Metal Specialties and procured a job that would otherwise have gone to Fredenburg's company. The name of this nonunion company, Freden- burg said, was Industrial Mechanical, Inc. (IMI). Because EESI/IMI could bid both ways, union/nonunion, while Fredenburg always bid union, this was unfair competi- tion, Fredenburg continued. He finished by asking Gilli- land what he intended to do about this matter. Gilliland said he would look into it. About an hour later, Gilliland called another signatory to the contract who, like Sheet Metal Specialties, was lo- cated in Farmington, New Mexico. This second contrac- tor was named J. B. Mechanical and Gilliland asked its official, Joe Briggs, if he had heard anything about the EESI/IMI connection. Briggs responded that he had heard a rumor on the street, that he had heard several people talk about it, and that it was no big secret. Al- though Briggs also said that he personally did not have any problems yet, he told Gilliland to check out the 111111Ors. A short time after this, Gilliland talked by telephone with still a third signatory from the same area, Earl Sury, an official of Western Power. Like Fredenburg, Sury called Gilliland to complain that he had lost a job because of the EESI/IMI connection. Sury told Gilliland that he had complained to both the Plumbers' and Elec- tricians' unions and he wanted Gilliland as well to inves- tigate the matter. In mid to late December, Gilliland attended a routine meeting of the Building Trades Council where represent- atives of the building trades unions met to discuss mutual problems. After Gilliland raised the matter of EESI/IMI, all or most of the business agents of the other unions in- dicated they had heard of the connection. More specifi- cally, the business agent for the Carpenters announced his intention to file a grievance; the business agent for the Pipefitters said he was going to take up the matter with his International union; other business agents prom- ised to make their own investigation. Then at either this meeting or at a second December meeting of the Build- ing Trades Council, a business agent for the Operating Engineers named Scott offered Gilliland the use of a questionnaire to obtain information from EESI/IMI and to facilitate Gilliland's investigation. Gilliland had it re- typed on the letterhead of the Union, added a date of 29 December 1986, changed the names of the companies in issue to Electrical Energy Services, Inc. and to Industrial Mechanical, Inc., changed the project name to San Juan Power Plant, near Waterflow, New Mexico, added a final paragraph explaining why the information was needed, and then mailed it to Thomas Akins (G.C. Exh. 3). Meanwhile, Sury was equally busy. On 30 December 1986, he mailed to Gilliland a letter with attachments that the latter received about 2 January. The letter reads as follows: 12/30/86 Sheetmetal Workers Union Local #49 4400 Silver Ave. S.E. Albuquerque, New Mexico 87108 Attn: Jeep Gilliland Subject: Industrial Mechanical, Inc. Gentlemen; On or about December 18, 1986, WESTERN POWER SERVICE AND CONSTRUCTION COMPANY, INC. bid on a job at the San Juan Power Plant to do work that consisted of "Insula- tion and Lagging in Dead Air Space (Unit #1)." The job was awarded to a nonunion arm of E.S.S.I., Inc. [sic] WESTERN POWER SERVICE AND CONSTRUCTION COMPANY, INC. feels the bid by the above subject contractor was in vio- lation of the Sheetmetal Workers' Union Contract and constituted unfair competition to WESTERN POWER SERVICE AND CONSTRUCTION COMPANY, INC., and requests your help in cor- recting this unfair competition. Sincerely, Western Power Service and Construction Company, Inc. /s/ Earl Sury Earl Sury, President [G.C. Exh 12] The other documents enclosed with the letter constitute a job assignment to IMI and list the contractor's name as Tom Akins (G.C. Exh. 12). Another document in the package is a letter on IMI letterhead to Public Service Company of New Mexico, apparently signed by Tony Burns as "Superintendent," and dated 18 December ELECTRICAL ENERGY SERVICES 927 1986. This is significant because Burns is known to Gilli- land as a longtime superintendent for EESI. After receiving the Sury letter, Gilliland called Sury to assure him that he was looking into the matter. Then as part of his continuing investigation, Gilliland went to the various state agencies that regulate contractors in New Mexico. On 6 January, a state official prepared for Gilliland three affidavits: First, it was reported that EESI, through its qualifying parties, Thomas D Akins Jr, and Tom Akins, currently hold certain state contrac- tor licenses (G.C. Exh. 13). Second, it was reported that IMI, through its qualifying party, Thomas D. Akins Jr., currently holds certain state contractor licenses (G.C. Exh. 14). Finally, it was reported that according to state records, Thomas D. Akins Jr. is a qualifying party for Electrical Energy Services, Inc. and for Industrial Me- chanical, Inc. (G.C. Exh. 15). Under state law, a qualify- ing party is one who holds a 50-percent or greater inter- est in a given company.3 In addition to the above documents, Gilliland obtained additional state records: (1) Corporate documents for Perkins Construc- tion Company later changed to EESI (G.C. Exh. 16). (2) List of EESI Corporate Officers for 1984 (Shows Thomas D. Akins as Registered Agent, as President and as Director) (G.C. Exh. 17). (3) Corporate document's for Industrial Mechani- cal, Inc. (Shows Tom D Akins as Registered Agent, as an incorporator, and as director. Also shows that besides Akins, many of the directors for both corporations are the same) (G.C. Exh. 18). (4) List of IMI Corporate Officers for 1985 (Shows Tom D Akins as Registered Agent, as President, and as Director. Other IMI officers same as for EESI; other IMI directors also same, with one change (Shows IMI street address same as for EESI)F4 (G.C. Exh. 19). (5) List of IMI Corporate Officers for 1986 (Shows officers and directors same as for preceding year) (G.C. Exh. 20). (6) Certificates of Insurance for Workman's Com- pensation (Shows EESI, 4/1/85 to 4/1/86; IMI, 11/1/86 to 11/1/87 (G.C. Exh 21). After obtaining the above records from the State of New Mexico, Gilliland sent a followup letter to EESI, dated 16 January, noting that no answer had been re- ceived to the questionnaire dated 29 December 1986 and requesting a reply (G.C. Exh. 4). On 27 January, Hugh Taylor, a project manager for Western Power Service, sent a letter to Attorney John Hollis c/o union headquarters. The letter reads as fol- lows: 3 Sec. 101 01F, State of New Mexico Construction Industries Division Rules and Regulations (Mar 3, 1985), R. p. 92 (C.P Exh. 1). 4 The telephone numbers for the two companies were also similar, feting only in the last two digits. Gilliland called both numbers in Janu- ary and the same person answered both calls in the same way, "Hello, contracting." January 27, 1987 LN # 1923 Mr. John Hollis C/O Sheet Metal Worker's International Assoc. 4400 Silver S.E. Albuquerque, New Mexico 98108 Mr. Hollis; On the morning of December 17, 1986, I attend- ed a routine job walk at the PNM Power Plant. Present were: Mark Williams PNM Planner Tom Rapp PNM Contracts D. Brumbelow Normally representing MMC, Inc. H. Taylor Normally representing WPS, Inc. T. Burns Normally representing EESI, Inc. Workscope was discussed and then the siet [sic] of the work inspected. On the afternoon of that same day, the bids were submitted. On December 18th, Nancy Wood (West- ern Power Service secretary) received a phone call from Jeanette Vigil, (Tom Rapp's secretary) inform- ing us the [sic] IMI was awarded the contract. Nancy Wood asked Jeanette who IMI was and was told "Industrial Mechanical, Inc." On Wednesday, December 31st a truck with the EESI logo on it was seen at the worksite with one of two blue hard hat employees driving it. They proceeded to accomplish the work scope in the pre- viously mentioned walkdown. They entered & left EESI's jobsite office on oc- casions and appeared to be taking direction from T. Burns, the only EESI/IMI superintendent seen on the site. If you have any questions, please advise. Sincerely, Western Power Service & Construction Co., Inc. /s/ Hugh E. Taylor Hugh E. Taylor, Project Manager xc: Earl Sury, President File [G.C. Exh. 22] In addition to receiving reports of EESI trucks, trailer, and equipment at the San Juan Generating Plant site, Gilliland himself made similar observations there and at a second jobsite located at Shiprock High School. At both sites, Gilliland was informed by unnamed persons on the site that IMI employees were performing the mechanical work, i.e., plumbing and sheet metal work. Gilliland did not recognize any members of his local union working on either project although a provision of the labor agree- ment provides for a hiring hall procedure. By 3 February, Gilliland still had received no response to the 29 December questionnaire nor to the followup 928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD letter of 16 January. Accordingly on 3 February, he sent a second copy of the questionnaire to EESI/IMI togeth- er with a cover letter of explanation (G.C. Exh. 5). Fi- nally, on 18 February, and again on 9 March, Respond- ent's attorneys replied to Gilliland's letter of 3- February. These two letters read as follows: February 18, 1987 Mr. George "Jeep" Gilliland Sheet Metal Workers' International Assoc. 4400 Silver SE Albuquerque, New Mexico 87108 RE: Electrical Energy Services, Inc. Dear Mr. Gilliland: Electrical Energy Services, Inc. has referred your February 3, 1987 request for information to this firm for handling. As soon as we have reviewed your request and discussed the matter with our client, we will respond accordingly. Please call if you have any questions. Very truly yours, Cherpelis and Associates, P.A. /s/ Timothy L. Salazar Timothy L. Salazar cc: Tom Akins [G.C. Exh 6] March 9, 1987 Mr. George Gilliland Business Representative Sheet Metal Workers' International Association 4400 Silver S.E. Albuquerque, New Mexico 87108 RE: Electrical Energy Services, Inc./Industrial Me- chanical, Inc. Dear Mr. Gilliland: This letter will serve as a response to your Feb- ruary 3, 1987 request for information. You state in the February 3 letter that the information requested is needed so that you "may ascertain if there has been any violation of the agreement between Sheet Metal Workers International Association Local Union #49 and Electrical Energy Services, Inc." Accordingly, the above referenced entities will not provide the requested information for the reasons set forth hereunder. First, the information sought is not relevant to the Union's fulfillment of its statutory duties as the exclusive bargaining representative of EESI's em- ployees. The Union has the burden of establishing the relevance of the requested information. The Union has not met this burden. Secondly, the Union's allegation that the information is needed so it "may ascertain if there has been any violation of the agreement" is not supported by any objective facts. Specifically, the Union has failed to identify how EESI may have violated the relevant agree- ment, and the specific provision(s) of agreement al- leged to have been violated. Finally, there is no pending grievance or arbitration to which the re- quested information may pertain. Please call if you have any questions. Very truly yours, Cherpelis & Associates, P.A. /s/ George Cherpelis George Cherpelis [G.C. Exh. 7] On 12 March, the Union's attorney replied as follows to the above letters: March 12, 1987 George Cherpelis, Esq. Cherpelis and Associates 4001 Indian School Road NE, Suite 120 Albuquerque, New Mexico 87110 RE: Electrical Energy Services, Inc. and Indus- trial Mechanical, Inc. As you know, this law firm represents Local Union No. 49 of the Sheet Metal Workers Interna- tional Association. Your letter dated March 9, 1987, regarding the above has been referred to the under- signed. Please refer to the prior letters sent to your client(s) by Local 49 dated December 29, 1986, Jan- uary 16, 1987, and February 3, 1987. The information requested is clearly relevant in order to determine whether Electrical Energy Serv- ices, Inc. (herein "EESI") and Industrial Mechani- cal, Inc. (herein "IMI") constitute either a single employer or alter ego companies. If so, then EESI may well have violated its collective bargaining agreement with Local 49 by refusing and failing to apply all of the terms and conditions of by that con- tract to its operations under its alter ego, namely IMI. The information sought is certainly relevant to the Union fullfilling [sic] its duties as the exclusive bargaining representative of EESI's employees, in- cluding those of the apparent alter ego, 1MI. Local 49 has a reasonable and objective basis for believing that EESI and IMI constitute alter ego companies or a single employer. Thus, Local 49 has received a written complaint from a competitor of EESI that a certain job was awarded to "a non- union arm" of EESI. Local 49 also has a written statement that a usual representative and supervisor, Tony Burns, of EESI has been and is performing work for IMI and that on a job awarded to IMI, an EESI truck was on the job site. Local 49 is also aware that EESI and IMI have the same address and thus the same office, a rotating line telephone number and the same yard. Local 49 also has photo- graphs indicating the equipment of the union com- pany on the non-union project site. Documents filed with the State Corporation Commission indicate that both corporations have the same registerd [sic] agent and address, the same officers, nearly the same directors, and the same office. Moreover, affidavits from the New Mexico Construction Industries Division, Regulation and Licensing Department show that both companies ELECTRICAL ENERGY SERVICES 929 have the same qualifying party, Thomas D. Akins, Jr., who therefore must own 51% of both compa- nies. The affidavits further show that both compa- nies hold the same types of licenses and thus, are engaged in the same kind of work namely, GB-98- General Building, MM-98-General Mechanical, and EE-98-General Electrical. As you should already be aware, current law does not require that any grievance be presently pending. The case law is crystal clear that the infor- mation sought must be produced and without delay. Accordingly, have your client provide the request- ed information within two weeks from the date of this letter or an appropriate charge will be filed with the National Labor Relations Board. Very truly yours, Kool, Kool, Bloomfield & Hollis, P.A. By: /s/ John L. Hollis JLH/de cic Sheet Metal Workers Local 49 [G.C. Exh. 8] On 19 March, Attorney Salazar answered Attorney Hollis to say in pertinent part that "We will be forward- ing information as soon as it is compiled" (G.C. Exh. 9). On 10 April, Respondent's attorney replied as follows: April 10, 1987 HAND-DELIVERED Mr. John Hollis 'Kool, Kcal, Bloomfield & Hollis 1516 San Pedro NE Albuquerque, New Mexico 87110 RE: Electrical Energy Services, Inc./Industrial Me- chanical, Inc. Dear Mr. Hollis: This will serve as a response to Mr. Gilliland's request for information dated February 3, 1987. The above referenced companies maintain that the infor- mation sought is not relevant to the Union's fulfill- ment of its statutory duties as the exclusive bargain- ing representative of EESFs employees. Moreover, responses to many of the questions would require disclosure of confidential or proprietary information of either or both companies. Additionally, the re- quest is unduly burdensome and oppressive. With- out waiving any of these defenses to the Union's re- quest for information, the following information is provided: Electrical Energy Services, Inc. is identified below as "EESI" and Industrial Mechanical, Inc. is identified as "IMI." The numbers below correspond with the questions set forth in Mr. Gilliland's letter of February 3, 1987. 1. EESI: Industrial construction and maintenance "MI: Merit Shop, industrial and commercial con- struction and maintenance 2. EESI: New Mexico IMI: New Mexico 3. a) EESI: Utah, Arizona, New Mexico and Col- orado; License numbers: Utah-A100; #35109-8; Arizona-application filed; New Mexico-GB 98; MM-98, EE 98; #18167. IMI: New Mexico and Ar- izona; License numbers: New Mexico-GB 98, MM-98, EE 98; #25486 b) EESI: P.O. Box 1980, Farmington, New Mexico IMI: P.O. Box 2408, Farmington, New Mexico c) EESI: (505) 325-5003, 325-5004 IMI: (505) 325-5005 d) Irrelevant and immaterial 4. Irrelevant, immaterial and unduly burdensome and oppressive, 5. See response to question No. 4. 6. See response to question No. 4. 7. None 8. a) EESL 85-0224398 IMI: 85-0336953 b) EESI: 01-787644-003 IMI: 02-045500-003 9. Irrelevant, immaterial and relates to proprie- tary and confidential information of either or both the companies. 10. See response to question No. 9. 11. IMI leases office space, supplies and equip- ment from EESI pursuant to a written lease agree- ment. The specific terms of the lease agreement are confidential and also relate to proprietary informa- tion. 12. None. 13. See response to questions Nos. 4 and 9. Any of the referenced services provided by one compa- ny to the other would be pursuant to a written agreement. 14. None 15. None 16. See response to question No. 9. 17. EESI: All bids are under the signature of Tom Akins, President IMI: All bids are under the signature of William Harris, Vice President 18. See response to question No. 9. 19. See response to question No. 9. 20. See response to question No. 9. 21. None 22. None 23. None 24. None 25. See response to question No. 4. 26. See response to question Nos. 4 and 9. 27. None 28. Vague 29. See response to question Nos. 4 and 28. 30. See response to question Nos. 4 and 28. 31. See response to question No. 4. 32. See response to question No. 4. 33. See response to question No. 4. 34. EESI-employee wage rates established by applicable collective bargaining agreements. 930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD IMI—does not have an identifiable compensation program. Wage rates are established on a project by a project basis. 35. EESI—dictated by applicable collective bar- gaining agreements. IMI—None 36. EESI—the Union should have this informa- tion at its disposal. IMI—no written labor relations policies. 37.EESI—Tom Akins IMI—William Harris 38.EESI—State Contractor's Association IMI—None 39.Irrelevant and immaterial. 40. See response to question Nos. 4 and 28. 41. See response to question Nos. 4 and 28. 42. None 43. None 44. None 45. See response to question No. 9. Dates formed: EESI: May 6, 1973 IMI: September, 1985 46. See response to question No. 4. IMI—None 47. See response to question No. 4. 48.No occasion. 49. See response to question Nos. 4 and 9. 50.See response to question Nos. 4 and 9. Please call if we can be of further assistance. Very truly yours, Cherpelis & Associates, P.A. /s/ Timothy L. Salazar Timothy L.Salazar [G.C. Exh. 101 On 16 June, Respondent's attorney provided still addi- tional information to Attorney Hollis. This letter reads as follows: June, 16, 1987 Mr. John Hollis Kool, Kool, Bloomfield & Hollis 1516 San Pedro NE Albuquerque, New Mexico 87110 RE: Electrical Energy Services, Inc. and Industrial Mechanical, Inc. / NLRB Case No. 28-CA-8806 Dear Mr. Hollis: This will serve as a follow up to our telephone conference of June 4, 1987 regarding the above ref- erenced matter. As you were advised, Industrial Mechanical, Inc. ("IMI") only bids on projects where non-union contractors are solicited. The fol- lowing is a complete list of clients currently served by IMI: 1.Plains Electric Generation & Transmission Cooperative, Inc. Escalante Station P.O. Box 577 Prewitt, NM 87045 2. Conoco, Inc. San Juan Basin Gas Plant P.O. Box 3070 Bloomfield, NM 87413 3. CDK Contracting Company 800 South Hutton Farmington, NM 87401 4. Mobil Corporation P.O. Box 778 Farmington, NM 87499 5. Meridian Oil Company 3535 E. 30th Farmington, NM 87401 The above referenced companies specifically solicit- ed bids from non-union contractors. While Arizona Public Service Company and Public Service Com- pany of New Mexico accept bids from non-union contractors, IMI does not bid on these projects in- sofar as Electrical Energy Services, Inc. (8ESI) submits bids on projects of these companies. As we discussed, IMI only bids on projects where EESI cannot bid. Accordingly, EESI is not losing work as a result of the existence of IMI. Please call so we can discuss settlement of the in- stant unfair labor practice charge. Very truly yours, Cherpelis and Associates, P.A. /s/ Timothy L. Salazar Timothy L. Salazar [G.C. Exh 11] Although the lawyers were exchanging letters as re- flected above, Akins 5 was invited to and did appear at a meeting of the Building Trades Council in March. Al- though there, he made certain statements. For example, in answer to why he opened a nonunion company, he said many of his customers would not permit him to compete with a union company by submitting bids. So he was not going to sit still and let matters go downhill As to the origins of the name IMI, there was no particu- lar significance to it. As to his job goals, Akins told the business agents that he intended to try to get jobs for EESI first and if that was not possible, he would bid lower on behalf of IMI due to lower labor costs. He as- sured them, however, that he would not undercut on ev- erything. Akins said he would maintain control and tell IMI what jobs to bid on. As to the San Juan Generating Station, Akins said he would eventually bid on jobs there, but that it would take about a year to get in. Fi- nally, Akins said he intended to bid on a job at Plains, New Mexico, and would hire union members to work for IMI as he was confident they would work for what- ever he paid. 5 Despite small variations in Akins' name on the state documents de- scnbed above, all references are apparently to the same person, Thomas D. Akins. ELECTRICAL ENERGY SERVICES 931 B. Analysis and Conclusions , 1. Should the General Counsel's subpoena duces tecum be enforced? Prior to hearing, the General Counsel served on Re- spondent a subpoena duces tecum attempting to obtain each and every document placed in issue by the com- plaint (G.C. Exhs. 1(1) and (m)). Subsequently, Respond- ent filed a petition to revoke (G.C. Exh. 1(n)). I declined to rule at hearing on the petition, and indicated that I would consider the matter when writing my decision. In Board proceedings, enforcement of a subpoena is discretionary. NLRB v. Adrian Belt Co., 578 F.2d 1304, 1310 (9th Cir. 1978). Board regulations provide that a subpoena may be revoked if for a "reason sufficient in law, the subpoena is otherwise invalid." 29 CFR Sec. 102.31(b) (1986). In the instant case, the General Counsel is attempting to use the subpoena duces teem as a substitute for the Board order sought by the complaint. Not only is this procedure improper, but it is an abuse of the subpoena power because it would undercut the statutory require- ment for an unfair labor practice hearing where the ulti- mate issue to be decided is whether the General Counsel is entitled to the information in question. In light of the above, it is unnecessary to consider whether the petition to revoke was not timely filed as argued by the General Counsel. Even if the petition was not timely filed, I would, on motion of the administrative law judge, revoke the subpoena duces tecum because of the manifest improper purpose it seeks to achieve. Accordingly, Respondent's petition to revoke the Gen- eral Counsel's subpoena duces tecum B-472475 is grant- ed' and the subpoena is revoked. 2. Is the Respondent required to answer the Union's questionnaire? I begin with some basic legal principles that are not subject to dispute. In Transcript Newspaper, 286 NLRB 124 (1987), the judge stated the following that was af- firmed by the Board: An employer's duty to bargain in good faith in- cludes the obligation to provide information needed by a bargaining agent for the proper performance of its duties. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). The right to receive information arises by operation of the Act itself, upon an appropriate re- quest and the scope of the right is limited only by considerations of relevancy. Ellsworth Sheet Metal, Inc., 224 NLRB 1505, 1507 (1976). In Bohemia, Inc., 272 NLRB 1128, 1129 (1984), the Board observed: . . . 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 re- sponsibilities as the employees' exclusive bargain- ing representative." Associated General Contrac- tors of California, 242 NLRB 891, 893 (1979), enfd. 633 F.2d 766 (9th Cir. 1980); NLRB v. Acme Industrial Co,, 385 U.S. 432 (1967). The Board uses a liberal, discovery-type standard to determine whether information is relevant, or po- tentially relevant, to require its production. NLRB v. Truitt Mfg. Co., supra. Information about terms and conditions of employment of em- ployees actually represented by a union is pre- sumptively relevant and necessary and is required to be produced. Ohio Power Co., 216 NLRB 987 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976). Requested information that is not so apparently related to a union's bargaining obligations is not presumptively relevant. In such situations, there must be a demonstration of relevance. NLRB v. Rockwell Standard Corp., 410 F.2d 953, 957 (6th Cir. 1969). Information not presumptively relevant, nonetheless may have "an even more fundamental relevance than that considered presumptively rele- vant." Prudential Insurance Co. of America v. NLRB, 412 F.2d 77, 84 (2d Cir. 1969). Not all relevant in- formation need be disclosed. If the information is of a confidential nature, it may be withheld until ap- propriate safeguards are provided. Detroit Edison Co. v. NLRB, 440 U.S. 301, 314 (1979). See also Hawkins Construction Co., 285 NLRB 1313 (1987). In Pence Construction Co., 281 NLRB 322 (1986), the Board affirmed a decision in a case similar to that at bar. The judge wrote: The Board has held that information requested by a union of an employer concerning the existence of a double-breasted or alter-ego operation falls into the category of information which is not presump- tively relevant. [Citations omitted.] . . . To satisfy its burden, the union must show that it had a rea- sonable belief that enough facts existed to give rise to a reasonable belief that the two companies were in legal contemplation a single employer. [Citations omitted.] 6 Finally, it is helpful to consider still additional princi- ples as stated by the Board in W. L. Molding Co., 272 NLRB 1239, 1240 (1984): [I]t is not the Board's function in this type of case to pass on the merits of the Union's claim that Re- spondent breached the collective bargaining agree- ment or . . . committed an unfair labor practice. NLRB v. Rockwell-Standard Corp., 410 F.2d at 957. Thus, thc union need not demonstrate actual in- stances of contractual violations before the employ- er must supply information. Boyers Construction Co., 267 NLRB 227, 229 (1983). Nor must the bargain- ing agent show that the information which trig- 6 "Double-breasted" describes a contractor who operates two compa- nies, one unionized and the other open shop Watt Electric, 273 NLRB 655, 657 fn. 11 (1984). "Alter-ego" describes two employers having sub- stantially identical ownership, management, business purpose, nature of operations, equipment, customers, and supervision. Electrical Workers IBEW Local 3 (Telecom Plus), 286 NLRB 235 (1987). 932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gered its request is accurate, nonhearsay, or even ultimately reliable. Ibid. The Board's only function in such situation is in acting upon the probability that the desired information was relevant, and that it would be of use to the union in carrying out its statutory duties and responsibilities. NLRB v. Rock- well-Standard Corp., 410 F.2d at 957 quoting NLRB v. Acme Industries Co., 385 U.S. at 437. Accord: General Motors v. NLRB, 700 F.2d at 1088. [Fn. omitted.] I find first that the Union acted in good faith because its asserted reason for requesting information can be jus- tified. Hawkins Construction Co., 285 NLRB 1313, supra. Thus, Gilliland was gathering information to decide whether a grievance should be filed with the Joint Ad- justment Board as provided for in the collective-bargain- ing agreement (G.C. Exh 2). Gilliland even described the possible violations of the agreement that might be al- leged: hiring hall procedures, trust fund provisions, bonding provisions, and misassignment of work (R. Exh. 170). I further note that the Union demonstrated good faith by informing Respondent in its initial questionnaire why the information was desired (see final par., G.C. Exh. 3, App. I). The Board, however, has held that even where the Union fails to state the basis for its request, the Union does not forfeit its right to relevant informa- tion. Barnard Engineering Co., 282 NLRB 617 (1987). Not only has good faith been demonstrated, but rel- evance as well. The evidence developed by Gilliland and reviewed in the facts portion of this decision shows a business relationship between EESI and IMI, the effects of which may constitute one or more violations of the labor agreement. Under Board law, the Union is entitled to explore further the extent of this relationship. In Realty Maintenance, 265 NLRB 1352 (1982), the Board was also faced with a similar question involving the relationship between Respondent and two other com- panies. Similar kinds of information were requested by the Union to determine whether the Respondent was violating the subcontracting provision of the agreement. The Board ordered the Respondent to provide the re- quested information. See also Pertec Computer Corp., 284 NLRB 810 (1987); and Dahl Fish Co., 279 NLRB 1084 (1986). The case of Proctor Mechanical Corp., 279 NLRB 201 (1986), also supports the Union's request for information in this case. At page 18 of its brief, Respondent attempts to distinguish the, case by noting that the Respondent in Proctor did not reply at all to the Union's 27-question re- quest for information, while in the instant case, Respond- ent did provide some information. I reject Respondent's attempt to distinguish Proctor and find that it fully ap- plies to the instant case. In light of the ample evidence of good faith and rel- evancy in this case, it is not surprising that Respondent argues in the alternative (Br. 17-19), that it has already provided the Union with a full response to its question- naire. This claim, like others made by Respondent, must fail. Notwithstanding Respondent's characterization of its answer to the Union, as a "Full Response" (Br. 17, par. c), in the text of its argument, it refers to answers to "more than half of the questions." I have published Re- spondent's written response to the Union (G.C. Exhs. 10 and 11) in the facts portion of this decision and they need not be repeated. Assuming without finding that Re- spondent has provided some of the information request- ed, I fail to see how this partial effort would defeat the Union's right to the additional relevant information to which it is entitled. More importantly, as a result of the Board's Order in this case, it is possible that the informa- tion already provided may need to be supplemented lest Respondent avoid its legal obligations under Board law. In conclusion, I find that it is unnecessary to cover the questionnaire point by point as I have found the informa- tion requested is relevant. Respondent's duty was to fur- nish as promptly as practical any information properly requested. Aero-Motive Mfg. Co., 195 NLRB 790, 792 (1972). Respondent did not comply with this rule. To the extent that Respondent's letter of 10 April (G.C. Exh. 10) raises certain defenses that are not fully developed in its brief, I note the following. To the extent Respondent validly raises a defense of confidentiality, it must offer to bargain with the Union to accommodate their respective interests. Tritac Corp., 286 NLRB 522 (1987). To the extent Respondent contends that the Union should already have the requested information at its disposal, the Board has said, "Absent special circum- stances, a union's right to information is not defeated merely because the union may acquire the needed infor- mation through an independent course of investigation." Kroger Co., 226 NLRB 512, 513 (1976). See also New York Times Co., 265 NLRB 353 (1982). To the extent Respondent claims that the Union's request was too bur- densome, this is a matter which can be resolved, if neces- sary, at the compliance stage of the proceeding. Tritac Corp., supra, citing Chemical Workers Local 6-418 v. NLRB, 711 F.2d 348, 363 (D.C. Cir. 1983). For the reasons stated above, I conclude that Re- spondent has violated Section 8(a)(1) and (5) of the Act by refusing to provide the Union with the information requested in the questionnaire of 29 December 1986 (G.C. Exh. 3, App. I). 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. Sheet Metal Workers International Association, Local Union No. 49, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. The bargaining unit described below is an appropri- ate unit for collective bargaining within the meaning of Section 9(b) of the Act: All employees of the Employer engaged in, but not limited to, the (a) manufacture, fabrication, assembling, han- dling, erection, installation, dismantling, condition- ing, adjustment, alteration, repairing and servicing of all ferrous or non-ferrous metal work, and all other materials used in lieu thereof and of all air- veyor systems and air handling systems, regardless ELECTRICAL ENERGY SERVICES 933 of material used including the setting of all equip- ment and all reinforcements in connection there- with; (b) all lagging over insulation and all duct lining; (c) testing and balancing of all air handling equip- ment and duct work; (d) the preparation of all shop and field sketches used in fabrication and erection, including those taken from original architectural and engineering drawings or sketches; and, (e) all other work included in the jurisdiction claims of Sheet Metal Workers' International Asso- ciation. 4. By failing and refusing to provide the Union with the information requested in the questionnaire contained in Appendix I to this decision, since 2 January 1987, Re- spondent unlawfully refused, and is refusing, to bargain in violation of Section 8(a)(5) and (1) of the Act. 5. The above unfair labor practices affect commerce within the meaning of the Act. THE REMEDY Having found Respondent engaged in an unfair labor practice, I find it necessary to order it to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The order will require Respondent to furnish the Union with answers to the questionnaire published in Appendix I to this decision. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 7 ORDER The Respondent, Electrical Energy Services, Inc., Farmington, New Mexico, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively and in good faith with Sheet Metal Workers International Association, Local Union No. 49, AFL-CIO by refusing to provide the Union with answers to the questionnaire published in Appendix Ito this decision. (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) Furnish on request to Sheet Metal Workers Inter- national Association, Local Union No. 49, AFL-CIO the answers to the questionnaire published in Appendix I to this decision. (b) Post at its facilities at Farmington, New Mexico, copies of the attached notice marked "Appendix."8 7 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. 8 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. Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Re- spondent's authorized representative of Electrical Energy Services, Inc., shall be posted by the Respondent imme- diately on receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reasonable 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. 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 I Sheet Metal Workers' International Association 4400 Silver S.E., Albuquerque, New Mexico 87108 Telephone: (505) 266-5878 Local Union No. 49 12-29-86 Dear Mr. Thomas D. Akins: QUESTIONNAIRE AND REQUEST FOR DOCUMENTS For the purposes of answering this questionnaire and request for documents, the term "company" refers sepa- rately to Electrical Energy Services, Inc., and Industrial Mechanical Inc. You are requested to answer each ques- tion and each request for documents with respect to each company. The term "project" refers to the San Juan Power Plant near Waterflow, New Mexico. 1. Describe in detail the type of business in which each company engages. 2. List the states in which each company is incorporat- ed, the dates of incorporation and the name and current address of each incorporator. State the position, if any, which each incorporator currently holds and/or has held with each company and produce copies of all articles of incorporation for each entity. 3. With respect to each company, state the following: a. the geographical area in which it does business, the states in which it is licensed and its license num- bers; b. its business address, including all post office box numbers and office locations; c. its phone numbers and directory listings; d. where its accounting, corporate and other bu[sliness records are kept and the name and cur- rent address of the custodian(s) of those records. 4. With respect to each company, identify by name, current address and position held of each stockholder, officer and director of that company who currently 934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD holds or has held any of the following positions with the other company and state the positions held and the dates of employments and/or office with each company (shareholders may be limited to those holding 5% of more of the outstanding shares): a. stockholder; b. employee; c. officer; or d. director 5. State whether the companies share or have shared in common any of the following, and if so, name the company involved and identify the corporations, firm, partnership, individual or business shared in common by its name, current address and a description of its business relationship to each company: a. banking institutions; b. sources of credit; c. accountants; d. attorneys; e. payroll preparers; f. insurance carriers and/or policies for workers' compensation; g. insurance carriers and/or policies for other health insurance programs; h. bookkeepers and i. labor relation consultant(s) 6. Identify all businesses which have engaged in busi- ness transactions with both companies, albeit at different times, in each of the following categories and with re- spect to each, state the name and current address of the business and the nature, date and dollar value of each transactions and produce copies of all documents evi- dencing each transaction: a. rental, lease, purchase of sale of office space; b. rental, lease, purchase or sale of office equip- ment or supplies; c. rental, lease, purchase or sale of construction materials or supplies; d. rental, lease, purchase or sale of construction equipment or tools. 7. Identify by name and current address every con- struction firm which has entered into a subcontract, albeit at the same or different times, with both companies and state the name and location of the project involved, the nature of the subcontract and the dates the work was performed. 8. With respect to each company state: a. its federal taxpayer identification number; b. its state taxpayer identification numbers, in- cluding each number and state. 9. Identify each transfer of funds between the compa- nies and, with respect to each transfer, state the date and amount of the transfer and the reason for the transfer. Produce copies of any documents which set forth the terms of each transfer. 10. Identify amount(s) involved and date(s) when one company has performed construction work of any type with a guarantee of performance by the other company. Produce copies of all such written guarantees. 11. Identify the calendar period and terms by which one company provides or has provided office space, either for rent or for free, to the other company. Produce copies of all documents which set forth the terms under which such space is provided. 12. Identify each transaction by which any of the fol- lowing was transferred from one company to another company and, with respect to each such transfer, identify the item transferred, the date of transfer, the dollar value of the items transferred at the time of transfer and the terms under which the items were transferred and produce copies of all documents setting forth the terms of each transfer: a. office supplies and/or equipment b. construction equipment and/or tools; or c, construction supplies and/or materials. 13. Identify which of the following services that are or have been provided by one company to another and, with regard to each service, state the precise nature of the services rendered, the date(s) on which the services were rendered, and the terms under which the services were rendered and produce any written documents set- ting forth the terms pursuant to which such services are being or were rendered by one company to the other: a. administrative b. bookkeeping c. clerical d. detailing e. drafting f. engineering g. estimating h. managerial i. pattern making j. sketching k. other 14. Identify by name and date every place where both companies have advertised for customer business (e.g. trade publications, professional journals, etc.). 15. Identify by name, address, type of business and cal- endar period and dollar volume of work performed the customers of each company that have been referred to the other company and state how and by whom such re- ferrals were made. Produce copies of all documents in which such referrals were made. 16. Identify by name, address, type of business and cal- endar period and dollar volume of work performed for the customers of each company who are now or were formerly customers of the other company. 17. Identify those persons who bid and/or negotiate each company's work by name, current address and em- ployment position. 18. Identify by customer, calendar period and dollar volume any job(s) on which both companies have: ELECTRICAL ENERGY SERVICES 935 a. bid competitively; b. submitted bids to perform different work on the same job; or c. submitted bids to perform either different or the same type of work on different phases of the same job(s). 19. State which of the bids identified in response to the previous question were accepted by the customer and which company received the work and identify on which of those jobs one of the companies actually per- formed or will perform work. 20. Identify by customer, calendar period and dollar volume any work which one company has subcontracted to or received by subcontract from the other company. Produce copies of all such subcontracts. 21. With respect to the subcontracts identified in re- sponse to the preceding question, state the reason for each subcontract let by each company. 22. Identify by customer, calendar period and dollar volume any work which one company was legally obli- gated to perform but which the other company actually performed. 23. Identify by customer, calendar period and dollar volume jobs on which one company has succeeded, or been succeeded by, the other company. 24. Identify any work which one company performs on the products of any other company. 25. Identify by name, current address and job title or craft position each employee who has been employed by both companies. 26. Identify each instance where one company has given information to the other company regarding any of the following and with respect to each instance, state the nature of the information given, the names and addresses of the persons giving and receiving the information, the date on which the information was given and whether such information was in writing and produce any written communication transferring or relaying such information. a. employees; b. customers; c. subcontractors; cll. construction equipment or tools; or e. construction materials, and supplies. 27. Identify by name, address, job title or craft position and transfer date those employees transferred between one company and the other and identify the jobs of each company on which these employees were working at the time of transfer and on which they worked after the transfer. 28. With respect to each job performed by each com- pany, state which other company would have the capac- ity to perform that work. 29. State the skills which the employees of each com- pany are able to perform and whether the other compa- ny employs or has employed persons with same skills. 30. Identify by name, address, job involved, dates and position held the supervisory and management personnel of each company who: a. have been employed by the other company; b. have been authorized to supervise the employ- ees of the other company; or c. have formulated or effectuated managerial policies over the other company. 31. Identify by project involved, personnel involved and date of event any occasion when the personnel of one company performed a supervisory function over any employees of the other company. 32.Identify by name, current address and title the rep- resentatives of each company who have knowledge of, actively are involved in or authorized or direct the day- to-day management or operations of the other company. With respect to each such person, state the name of the company which employs such person and, with particu- larity, the person's knowledge or involvement in the other company's management or operations. 33.Identify by job title, name and address any employ- ees or other representatives of each company who con- sult or discuss with personnel of the other company re- garding the business of that company. As to each such person, state the nature of their consultations or discus- sions with the personnel of the other company. 34. Describe each company's compensation program, including employee wage rates. 35. Describe each company's fringe benefit program, including the benefits offered, the contributions paid, who pays the cost or premiums for those benefits, and the name of each insurance company which administers and/or provides each fringe benefit. 36.Describe each company's labor relations policy and list every collective bargaining agreement to which each company is presently signatory and which would cover any type of construction work performed in New Mexico. Produce copies of all such collective bargaining agreements and all personnel or labor policy manuals published or distributed by either company. 37.Identify by name, current address and job title the personnel of each company who establish or otherwise control labor relations policy for the company and state whether such employees are or have been employed by the other company and the date(s) of employment. 38. Identify for each company the employer associa- tions to which the company belongs. 39.Identify the place(s) and date(s) of each company's directors meetings over the last five years. 40. Identify which companies were invited to bid on the project, how they learned of the project and which company actually submitted a bid for the project. Produce copies of any invitations to bid any bids submit- ted. 41. Identify which company or companies solicited bids from subcontractors for work to be performed on the project. State the names and current address of each subcontractor solicited and whether they actually sub- mitted a bid and to whom the bid was submitted. Produce copies of any such solicitations to bid and of the actual bids submitted. 42. Identify any written or oral communications be- tween the companies regarding any aspect of the bidding on the project. As to each communication, identify by name, current address and title the persons who were 936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD party to the communication, the date and nature of the communication and the information which was ex- changed. Produce copies of any such written communi- cations. 43. Identify by name, current address and title each person who is an officer, director or employee of either company who had contact with the owner of the project regarding the project. For each such persons identify the nature of the contact, the date(s) of contact and what matters were discussed. If there were written communi- cations, produce copies of them. 44. Identify by name, current address and title each employee, officer or director of each company who par- ticipated in the preparation of bid for the project. State with particularity the nature of the work which the person performed in connection with preparing the bid. 45. With respect to each company, state the dates on which the company was formed, the reason why the company was formed and whether any funds, other assets or personnel of the other were transferred to the new company. Produce copies of any document evidenc- ing or relating to the formation of each company or the transfer of assets from one company to the other. 46. Set forth an organizational flow chart for each company showing each officer or managerial employee and their responsibilities and identify each such officer or managerial employee by name and title. 47. Identify every person on the organizational flow charts set forth in response to the previous question who reports to or is supervised by an officer or employee of the other company and identify by name, current address and title the officers or employees of the other company to whom the person reports or by whom the person is supervised. 48. State the date, project, amount and the name of the employee involved for each instance when one company has paid the wages, payroll taxes, fringe benefit premi- ums, unemployment expense for any employee of the other company. 49. State the name and title of any employee of either company who has participated in or attended any legal proceeding involving the other company; identify the proceeding by date and case number and name; and state the role which each employee played in the proceeding. 50. Identify the annual and shareholder's reports issued by each company and furnish the same for the last three calendar or fiscal years. The above information is needed in order to determine if Electrical Energy Services Incorporateds' contract with Sheet Metal Workers' International Association Local Union #49 has been violated. Sincerely, George "Jeep" Gilliland Business Representative xc: G. Briggs Kool, Kool, Bloomfield & Hollis P.A. APPENDIX II 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act togeth etr for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT refuse to bargain collectively with Sheet Metal Workers International Association, Local Union No. 49, AFL—CIO by refusing to supply it with answers to the questionnaire published in Appendix I to this decision. 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 of the Union, furnish answers to the questionnaire published in Appendix I to this deci- sion. ELECTRICAL ENERGY SERVICES, INC.