George Koch & Sons, Inc.

GEORGE KOCH & SONS, INC. 695 George Koch & Sons, Inc. and Sheet Metal Workers International Association , Local Union No. 20. Case 25-CA-18958 June 15, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHNASEN AND CRACRAFT On December 13, 1988, Administrative Law Judge Irwin Kaplan issued the attached decision. The Respondent filed exceptions and a supporting brief; the General Counsel filed limited cross-ex- ceptions, a supporting brief, an answering brief to the Respondent's exceptions, and a motion to strike the Respondent's Exhibit A to its exceptions; and the Respondent filed an answering brief to the General Counsel's limited 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, t and conclusions and to adopt the recommended Order as modified.2 AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 5. ' The Board's established policy is not to overrule an administative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit. 1951). To the extent that the Respondent has excepted to some of the judge's credibility findings, we have carefully examined the record and find no basis for reversing the findings. We agree with the judge that the General Counsel established that the Union had an objective factual basis for believing that the Respondent was subcontracting unit work to Alpha and that Alpha and the Respond- ent were a double-breasted operation. We also agree with the judge that the requested information was relevant to the Union's performance of its job as the collective-bargaining representative of the Respondent's em- ployees and that the Respondent 's failure to provide the information at all or in a timely manner violated Sec 8(a)(5). In so concluding, we rely specifically on the facts that the information related to subcontracting and that subcontracting was an issue in the ongoing negotiations. We note that the Respondent did not contend at the hearing that the subcontracting clause in the parties' collective -bargaining agreement was invalid and, therefore, the Respondent's exception on this point is not timely raised. We find it unnecessary, in any event, to address this issue because we rely on the judge's findings regarding the relevance of the requested information to the negotiations. Accordingly, we find it unnec- essary to pass on the General Counsel's motion to strike the Respondent's exception on this issue. 8 The judge's remedy, recommended Order, and notice require the Re- spondent to provide the Union with the requested information within the Respondent's knowledge and/or control . Pursuant to the General Coun- sel's exception on this matter , we will modify the recommended Order and notice to provide the standard Board remedy for this situation. See, e.g, Bentley-lost Electric Corp., 283 NLRB 564 (1987). Any disputes re- garding the Respondent's fulfillment of its obligations under this decision can be addressed in the compliance stage of this proceeding. "5. By refusing to furnish the Union with the re- quested information relevant to collective-bargain- ing negotiations, the Respondent failed to bargain collectively and in good faith with the Union and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, George Koch & Sons, Inc., Evansville, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 1(a). "(a) Failing to bargain collectively and in good faith with Sheet Metal Workers International Asso- ciation, Local Union No. 20, by refusing to furnish the Union with the requested information relevant to collective-bargaining negotiations." 2. Substitute the following for paragraph 2(a). "(a) Promptly furnish the Union , on request, the previously requested information relevant to collec- tive-bargaining negotiations." 3. Substitute the attached notice for that of the administrative law judge. APPENDIX B 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 ordered us to post and abide by this notice. WE WILL NOT fail to bargain collectively and in good faith with Sheet Metal Workers International Association, Local Union No. 20, by refusing to furnish the Union the requested information rele- vant to collective-bargaining negotiations. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL promptly furnish the Union, on re- quest, the previously requested information rele- vant to collective-bargaining negotiations. GEORGE KOCH & SONS, INC. Robert E. Haves, Esq., for the General Counsel. 295 NLRB No. 73 696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Arthur D. Rutkowski, Esq. (Bowers, Harrison, Kent & T. Miller), of Evansville, Indiana, for the Respondent. DECISION STATEMENT OF THE CASE IRWIN KAPLAN, Administrative Law Judge. This case was heard in Evansville, Indiana, on February 19, 1988. The underlying charges were filed on October 26, 1987, by the Sheet Metal Workers International Association, Local Union No. 20 (the Union) against George Koch & Sons, Inc. (the Respondent or Koch). These charges gave rise to a complaint and notice of hearing dated De- cember 1, 1987. The gravamen of the complaint is that the Union re- quested information of the Respondent "with regard to the business relationships and interconnections between" said Respondent and a company known as Alpha Indus- tries to determine whether said Respondent was wrong- fully "diverting work" and that the Respondent's refusal and failure to furnish such information is violative of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). The Respondent filed an answer amended at the hear- ing conceding, inter alia, certain jurisdictional facts, the Union's collective-bargaining exclusivity, and the appro- priateness of the unit, but denying that it committed any unfair labor practices. Moreover, the Respondent con- tends affirmatively that as it is not alleged that the Union represents any of the employees of Alpha Industries, that the General Counsel must "plead and prove the rel- evance of the information requested." Based on the entire record, including my observation of the demeanor of the witnesses as they testified, and after careful consideration of the posttrial briefs, I making the following FINDINGS OF FACT I. JURISDICTION The Respondent, an Indiana corporation with an office and place of business in Evansville, Indiana, is engaged in the manufacture and assembly of industrial ovens, con- veyors, paint finishing and coating equipment, and relat- ed products. In connection with the aforenoted business operations, the Respondent, inter alia, has sold and shipped from its Evansville, Indiana location products, goods, and materials valued in excess of $50,000 directly to points outside the State of Indiana. The Respondent admits, the record supports, and I find that it is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. The Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. ed products. For some unspecified number of years and at least since 1983, the Respondent's employees have been represented by Local 20.' Before the round of ne- gotiations which gave rise to the instant dispute, the last collective-bargaining agreement between the parties was effective, by its terms, August 10, 1984, until August 8, 1987 (G.C. Exh. 2). On or about July 13, 1987,2 the parties commenced the instant round of negotiations for a new collective- bargaining agreement. On July 21, the second bargaining session, the Union presented the Respondent with a six- page request for information containing some 89 items dealing with the Respondent's business, the business op- erations of a company know as Alpha Industries (Alpha) and the interrelationship of both companies (G.C. Exh. 1(a), Exh. "A"). The document referred to the Respond- ent and Alpha Industries as "A" and "B" respectively. For example, the Union's questionnaire asked the Re- spondent to identify both "A" and "B"s customers during the past 3 years and to define the geographic area in which both companies do business. Further, the Re- spondent was requested to "identify business(es) -to whom "A" sells, rents or leases its operating equipment, contruction equipment or tools," as well as to whom "B" sells, rents, etc.3 In attendance for the Union at aforenoted second bar- gaining session was Union Business Representative David Harmes, business representative and Local 20 President Richard Peck, and Jack McNeely, another business representative for Local 20. Clarence Arbeiter, vice president of industrial relations, attended that meet- ing on behalf of the Respondent. At the instant hearing Hames provided the following explanation for the re- quested information: The reason behind it, we were in negotiations and we felt like we had enough evidence that had been collected since 1983 to justify requesting this infor- mation due to the fact that Alpha Industries has consistently followed George Koch Sons [Respond- ent] around the country installing their equipment. .... We feel that information was relevant to our negotiations. [Tr. 22.] By letter dated July 24, 1987, Arbeiter asked Hames to clarify further the reasons for the request (questionnaire) in order to properly respond thereto. (G.C. Exh. 3.) There, Arbeiter also noted "any such request for infor- mation must be relevant to some legitimate purpose con- cerning our negotiations for a new building trades agree- ment." On July 28, the Union responded by letter, hand delivered, stating, inter alia, that it "has reason to be- lieve" that both companies are "integrally related" and "perhaps" subcontract certain sheet metal items to each II. THE UNFAIR LABOR PRACTICES A. Background and Sequence of Events The Respondent is primarily engaged in the manufac- ture, fabrication, and assembly of industrial ovens, con- veyors, paint finishing and coating equipment , and relat- I On November 1, 1983, Local 96, Local 478, Local 572, and six other building trade locals in the State of Indiana merged and formed Local 20. These locals will be referred to herein without distinction as "Local 20" or "the Union" (Tr. 17). $ All dates hereinafter refer to 1987 unless otherwise indicated s The questionnaire in its entirety is published and marked as "Appen- dix A" at the end of this decision . (The 89 items were not numbered in the original ) GEORGE KOCH & SONS, INC. other. (G.C. Exh. 4.) The Union there noted that "[f]or this reason and others it could affect all of the provisions of the present labor agreement including Article II, the sub-contracting clause." That provision in its entirety states as follows: ARTICLE II. (Erection or Installation of Company's Products) Section 1. The Company agrees to use this Agree- ment for oven and paint finishing systems and their apputenances only. The Company also agrees to at- tempt to secure the work as a turnkey contractor at all times. The Union also agrees to assist the Company in whatever way necessary to secure the erections of the work described in this Agreement, including se- curing special conditions from other Sheet Metal Locals and obtaining the agreement with other trades. The Company agrees that it will follow the below procedure relative to the installation or erec- tion of all products and/or equipment manufactured under this Agreement for use in the building and contruction industry, and coming within the trade jurisdiction or journeymen members of Sheet Metal Workers' International Association. A. Whenever the Company subcontracts such products and/or equipment it agrees to subcontract same to contractor who employs jouneymen sheet metal workers for this type of work. B. Whenever the Company erects such work itself, it shall call upon the building and construc- tion trades union affiliated with Sheet Metal Work- ers' International Association having jurisdiction over the area in which such work is to be per- formed to furnish it with men at the prevailing wages and conditions of said Local Union. Whenever the Company sells such products and/or equipment direct to a general or specialty contractor or an owner, it shall furnish the Union with information on any such shipments if requested in writing. Such information shall include the type of products or equipment shipped , the date of ship- ment, name and address or consignee and/or loca- tion of delivery site. Section 2. Subject to other applicable provisions of this Agreement the Company agrees that when subcontracting for prefabrication of materials cov- ered herein, such prefabrication shall be subcon- tracted to fabricators who pay their employees en- gaged in such fabrication not less than the compara- ble sheet metal industrial fabrication rated as estab- lished under provisions of this Agreement. In essence, the Respondent made its request for infor- mation to monitor compliance with article II to ensure that the Respondent was not engaged in double-breasted operations.4 (The factors relied on by the Union in sup- 4 "The term double-breasted is used to describe contractors who oper- ate two companies, one unionized and the other nonumonized or open- 697 port of its suspicion that the Respondent and Alpha In- dustries were engaged in "double-breasted " operations will be noted more fully below.) By letter dated July 30, Arbeiter responded to the Union's request for information, in pertinent part, as fol- lows: [P]lease be advised that George Koch Sons, Inc. does not own or control Alpha Industries and George Koch Sons, does not have within its knowl- edge the detailed information you request concern- ing Alpha Industries. Further, we are not integrally related to, nor do we subcontract sheet metal items to Alpha Industries. Under separate purchase orders direct from cus- tomers, Alpha Industries has installed Koch fabri- cated equipment on several occasions as have other non-union contractors. [G.C. Exh. 5.] The aforenoted response did not satisfy the Union and over the suceeding months their negotiators continued to press Respondent for full compliance with its question- naire. (Tr. 25.) Thus, in a memorandum to employees dated October 9 regarding recent negotiations , Respond- ent made several references to its dispute over subcon- tracting with the Union. (G.C. Exh. 11.) There, the Re- spondent reported , inter alia, that at the September 28 session: [T]he existence of union and non-union competition and its effect on KOCH'S ability to obtain work was discussed at length, as was its relationship be- tween Alpha and GEORGE KOCH SONS, INC. In the industrial market, the majority of our com- petitors are non-union. It was stated again, also, that KOCH does not subcontract work to Alpha as agreed in our current contract, but this is a problem because some of our competition does subcontract to non-union installers and customers wanting GKS to do the same to get orders. [Id.] In the same company memorandum, the Respondent noted that at the session on October 7, the Union again accused the Respondent of wrongfully subcontracting. As to that session, the Respondent reported: There was discussion once again about non-union (as opposed to union) installation of our equipment and a specific accusation by Local 20 that KOCH subcontracted installation to Alpha at Stowe & Davis in Grand Rapids Michigan . The Company shop Depending on the underlying facts and circumstances of each case. The employees of both constituent companies may be held to constitute a single appropriate bargaining unit or the employees of each may be con- tinued on held to form separate units In the former case , the collective- bargaining agreement covering the employees of the unionized firm may be held to cover the employees of the nonunion firm as well, or the em- ployer may be ordered to bargain on behalf of both firms with the union which had represented the unionized portion of such a double -breasted operation." Associated General Contractors of California, 242 NLRB 891, 892 fn. 5 (1979), enfd. as modified 633 F.2d 766 (9th Cit. 1980), cert. denied 452 U S 915 (1981); see also Burgess Construction Corp., 277 NLRB 765, 770-771, 773-774 (1977), enfd 596 F 2d 378 (9th Cir. 1979), cert. denied 444 U.S. 940 (1979). 698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Committee stated that KOCH did not subcontract to Alpha at Stowe & Davis. However, if a non- union installer obtaining the installation contract on that project had the effect of allowing KOCH to obtain a fabrication order for our shops in Evans- ville, that was certainly more desirable than any competitor of ours (union or non-union) obtaining the order instead. The Local Committee did not agree with that position. [Id.] Later that same month (October 26), the Union filed the instant charges alleging that "[t]he information re- quested is relevant to the formulation of the union's bar- gaining postion and for contract administration," and that Respondent's refusal to respond is violative of Sec- tion 8(a)(5) and (1) of the Act. (G.C. Exh. 1(a).) The Union has long suspected that Koch and Alpha are engaged in double-breasted operations (at least since 1982 or 1983). To confirm those suspicions, Local 20 re- quested other local unions to collect information regard- ing Alpha's business in the paint finishing field as well as information about the interrelationship between Alpha and Koch. In response thereto, the Union received, inter alia, two 1983 Dun & Bradstreet reports dealing with Alpha and Koch respectively.5 (G.C. Exhs. 6 and 7.) These reports revealed, inter alia, that both companies are related (although, the "extent of intercompany rela- tions" are "not disclosed") and that J. J. Hunsinger is a director and secretary of Alpha and a director and vice president and controller of Koch. The Union also re- ceived a copy of Certificate of Authority of the Com- monwealth of Kentucky for Alpha which issued in 1983 along with Alpha's application. (G.C. Exh. 8.) That ap- plication listed J. J. Hunsinger as "Secretary Treasurer and Director" of Alpha listing his address as 10 South 11th Street, Evansville, Indiana (Koch's address). Further, the Union relied on information supplied by employees or former employees of Alpha. Hames testi- fied that back in early 1983, he spoke to Robert Vinson, a former Alpha employee, who was then looking for work. Later that same year, Harnes asked Vinson to pro- vide an affidavit reflecting his knowledge of the relation- ship between Alpha and Koch. According to Vinson's affidavit, inter alia, while he was employed by Alpha, he assembled installed work fabricated by Koch and "all of his checks for wages and for expenses were made out by Geo[rge] Koch Sons, Inc. in Evansville." (G.C. Exh. 10.) Another former employee of Alpha, Raymond Beliles, told the Union that while he was employed by Alpha, he had worked on some seven different jobs where all of the equipment installed was fabricated by Koch. Hames testified that he asked Beliles to memorialize that infor- mation in an affidavit. (See G.C. Exh. 9, Beliles' affidavit dated November 9, 1987.) Also in 1987, Hames received letters from Keith Platt, business representative of Local 20 in the Fort Wayne, 5 Counsel for the Respondent objected to the receipt of the General Counsel's documentary evidence on the basis of hearsay ; that the docu- ments were not properly authenticated, and they covered events too remote in time to be of any relevance. The General Counsel offered such evidence "[not] to prove the truth of their content, but rather to demon- strate the basis on which the union acted." (G.C. Br. p. 6) Indiana area, and John Herr, business representative of Local 18 Milwaukee, Wisconsin), describing, inter alia, still other jobs whereby Alpha installed equipment fabri- cated by Koch. (G.C. Exhs. 12 and 13.) Platt's letter made reference to a Hartford City Pre-Mix job asserted- ly subcontracted to Alpha from Koch back in 1985. Union President Peck testified about that same Hartford City job. According to Peck, in the spring of 1985, at the Pre-Mix Hartford job, he was told by Alpha employees that they were doing work subcontracted by Koch. Peck also testified that he had observed Koch's labels on the equipment. While the Union did not file a grievance over the Hartford City job, Peck asserted that he discussed sever- al jobs, including said Hartford City job, with Arbeiter in support of the Union's request for information during the 1987 negotiations. 6 In turn, Arbeiter told the Union (as testified by Peck) that the customer had requested a nonunion bid and on those occasions , "Alpha happened to be there." (Tr. 66.) (Arbeiter did not testify nor was any other witness presented by Respondent.) B. Discussion and Conclusions The central question posed by the pleadings is whether the Union had a reasonable belief based on objective facts that the Respondent (Koch) and another company Alpha) were engaged in double-breasted operations (pre- viously defined, see fn. 3, supra). It is not disputed and I find that if answered in the affirmative, the requested in- formation, in the circumstances of this case, is relevant and must be furnished by the Respondent, on the Union's request. Walter N. Yoder & Sons, 270 NLRB 710 (1984). If, however, the record demonstrates that the Union's re- quest is based solely on the suspicion that the companies in question are engaged in double-breasted operations, as contended by the Respondent, the Union has failed to es- tablish the relevance necessary to impose an obligation on the employer to supply such information. Bohemia, Inc., 272 NLRB 1128 (1984). It is instructive to first note the general principles dealing with relevance, presump- tion, and burden of proof. It has long been established that an employer has a duty to provide, on the Union' s request, information `.relevant in carrying out its statutory responsibilities." NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967); Truitt Mfg. Co., 351 U.S. 149 (1946). Whether the infor- mation is relevant and necessary turns on the facts of each case. Procter & Gamble Mfg. Co. v. NLRB, 603 F.2d 1310, 1315 (8th Cir. 1979); Washington Hospital Center, 270 NLRB 396, 400 (1984). However, certain types of in- formation pertaining to wages, hours, and working con- ditions of bargaining unit employees are so intrinsic to the core of the employer-employee relationship that the 6 In early 1984, Sheet Metal Workers International Association, Local Union No. 41 brought a Sec . 301 action against the Respondent in the United States District Court in Indianapolis , Indiana, for an alleged breach of art. II, sec. I (assigning unit work to a nonunion company) of the then-current collective-bargaining agreement . Local 41 subsequently moved for voluntary dismissal without prejudice. However, by order dated October 1, 1984, the action was dismissed with prejudice. (G.C. Exhs. 15(a)-(e).) The Union continued to gather information regarding the relationship between Koch and Alpha. GEORGE KOCH & SONS, INC. 699 requested information is considered presumptively rele- vant. San Diego Newspaper Guild v. NLRB, 548 F.2d 863, 867 (9th Cir. 1977). Accord: Teleprompter Corp. v. NLRB, 570 F.2d 418 (1st Cir. 1977); Proctor & Gamble Mfg. Co. v. NLRB, supra at 1315. On the other hand, where as in the instant case, as acknowledged by the General Counsel, "Information requested of an employer about employees or operations other than those repre- sented by the Union do not (emphasis added), of course, enjoy the presumption of relevancy ." (Br., p. 2); see also Westinghouse Electric Corp., 239 NLRB 106, 109-110 (1978); Ohio Power Co., 216 NLRB 987, 991 (1975). In either case, the standard for relevancy is the same : a "lib- eral discovery-type standard." Pfizer, Inc., 268 NLRB 916, 918 (1984), citing Loral Electronic Systems, 253 NLRB 851, 853 (1980); Acme Industrial, 385 U.S. at 437; see also New York Times Co., 270 NLRB 1267, 1275 (1984). As noted above, the instant case involves, at least os- tensibly, a nonunit operation. Thus, in applying the a- forenoted principles, the Union has the initial burden of showing relevance . It should be noted , however, that while the Union has this affirmative burden, it need not demonstrate that the collective-bargaining agreement has been violated or that the companies in question are en- gaged in double-breasted operations ; rather, under a "lib- eral discovery-type standard," it must show only that the requested information has "some bearing" on these mat- ters. See generally Pfizer, supra; see also NLRB v. Associ- ated General Contractors, 633 F.2d 766, 772 (9th Cir. 1980), cert. denied 452 U.S. 915 (1981); San Diego News- paper Guild v. NLRB, supra. Here, I am persuaded that the Union has shown the requisite relevance. First, it is noted, that unlike the situ- ation presented in Bohemia, Inc., supra, which case is heavily relied on by the Respondent, here, the Union re- quested the disputed information during negotiations for a new contract. Moreover, here, the Union was also con- cerned that the Respondent was taking undue liberties with article II, the subcontracting clause of the then cur- rent collective-bargaining agreement . These concerns were communicated by the Union to the Respondent both verbally at the bargaining table and in correspond- ence. (See G.C. Exhs. 4 and 11.) Harmes testified that the Union's investigation of Alpha disclosed that where "George Koch Sons did not do the work themselves, predominantly Alpha (a non- union contractor) was the `erector' (emphasis added) of their product" (Tr. 54). Further, Harmes explained that in "most cases" Alpha did the installation work for Koch but little or no such work for other fabricators (Tr. 55). It is noted that article II of the then-current contract covered the "[e]rection or [i]nstallation of Company's [p]roducts. (G.C. Exh. 2, p. 2.) Local Union President Peck testified credibly' and without contradiction, inter 7 The only witnesses to testify were Peck and Hermes, both of whom were called by counsel for the General Counsel . I found them to be re- sponsive, consistent, and, in some significant areas, mutually corrobora- tive. As such, and on the basis of my observation of their demeanor as witnesses, I found them to be credible and reliable. It is also that the Re- spondent has acknowledged that "there is really no material dispute of the facts." (Br p 1.) alia, that in the spring of 1985 at a Hartford City project, individuals who identified themselves as Alpha employ- ees told him "that they were working as a subcontractor for George Koch and mentioned other projects as well" (Tr. 61-63). While there, Peck observed, inter alia, that the equipment these employees were installing had "Koch" labels (Tr. 61). Peck testified that he reported the matter to his assistant, Keith Platt, to investigate fur- ther and to inform Business Representative Harmes of the results. G.C. Exh. 12.) The Hartford City matter did not resurface insofar as coming to Peck's attention until after negotiations com- menced for a new contract in 1987. The record disclosed that during those negotiations and in connection with the Union's request for information, the Union informed Ar- biter (Respondent's chief negotiator) of the Hartford City project and also of other jobs where Alpha asser- tedly performed as a subcontractor for Koch. Given the prominence the parties attached to the sub- ject of subcontracting to nonunion installers during nego- tiations and noting the information the Union had al- ready acquired regarding the connection between Koch and Alpha,8 I find that legitimate and substantial ques- tions were raised as to whether said companies dealt at arm's-length or contravened the double-breasted prohibi- tions in the then-current collective-bargaining agreement. As such, the requested information clearly has some bearing on these questions and concomitantly , the Union has shown its relevance. Accordingly, I find that the Re- spondent, by not providing the requested information within its knowledge and/or control , it has violated Sec- tion 8(a)(5) and (1) as alleged.9 6 As noted above, in addition to the Hartford City project, the union negotiators received similar information about other projects, mostly from other union representatives, but also from former Alpha employees. (See G C. Exhs. 9, 10, 13, and 14 ) Further, the Dun & Bradstreet reports noted previously, inter alia, listed J. J. Hunninger as an officer and direc- tor of both companies. (G.C. Exhs. 6 and 7 .) Still further, Alpha's appli- cation for a Certificate of Authority from the Commonwealth of Ken- tucky identified J. J. Hunninger as "Secretary-Treasurer and Director" of Alpha listing Koch's address. (G.C. Exh. 8.) The Respondent objected to these exhibits largely on the basis of hearsay . However, I find as noted in Walter N. Yoder & Sons, supra at 656, fn 6, "This misses the point Testi- mony concerning these reports was received not for the truth of their content, but to demonstrate the basis on which the Union acted on this matter." 9 Approximately 5 weeks after the original charges were filed , the Re- spondent forwarded to the Board's Regional Office in Indianapolis, Indi- ana, certain limited responses to the Union's questionnaire. Along with those responses, the Respondent noted that it was "not answering ques- tions that require us to divulge proprietary and confidential information or trade secrets." (R. Exh 1 .) Thus, inter alia, the Respondent refused to provide any information dealing with "employee lists, customer lists and vendor lists." (Id.) The record disclosed that the Union first learned that the Respondent provided the Board 's Regional Office with any of the re- quested information approximately I week before the instant trial. Harmes testified credibly that he had not actually seen any of this infor- mation until the morning of the trial (Tr. 52). In these circumstances, noting particularly that the Respondent called no witnesses, adduced no testimony and proffered no documentary evidence in support of its afore- noted position, I find that the belated information it furnished the Board (not the Union) was merely an incomplete and untimely disclosure. As such, Respondent failed to fulfill its statutory obligation to furnish the Union with all requested relevant information. See Electrical Energy Serve ices, 288 NLRB 925 (1988); see also Pfizer, Inc., supra at 919 ("When the claim of confidentiality is raised, the party asserting that claim has the burden of proof."). 700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Sheet Metal Workers International Association, Local Union No. 20 is a labor organization within the meaning of Section 2(5) of the Act. 3. All sheet metal employees at Respondent's plant one, commonly known as 3, Sheet Metal Department, Evansville, Indiana, facility; but excluding all office cleri- cal employees, all confidential employees, all professional employees, and all guards and supervisors as defined in the Act, and also excluding all regularly classified Field Service employees, laboratory technicians, quality assur- ance employees, shipping and receiving clerks and jani- tors constitute a unit appropriate within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union has been the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Sec- tion 9(a) of the Act. 5. By refusing to furnish the Union with the informa- tion requested as alleged in the instant complaint, within its knowledge and/or control, the Respondent has failed to bargain collectively with the Union and has thereby engaged, and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in con- duct violative of Section 8(a)(5) and (1) of the Act, I rec- ommend that the Respondent cease and desist therefrom and take additional affirmative action necessary to effec- tuate the purposes of the Act. Having found that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to timely furnish requested relevant information within its knowledge and/or control to the Union, I recommend that the Re- spondent be required to promptly furnish this material. As for requested information not within the Respond- ent's knowledge and/or control, I find that the record falls short of establishing that the Respondent is under an affirmative obligation to obtain such information in order to comply with the Union's request. The obligation to furnish information is not unlimited. Postal Service, 276 NLRB 1282, 1288 (1985). An examination of the Union's questionnaire (see App. A) disclosed that in the absence of a single-employer, alter ego and/or joint-employer relationship or a greater degree of interlocking of owners, officers, directors, or operations between Koch and Alpha than shown on this record, I find it highly unlikely that certain of the re- quested information would be within the knowledge and/or control of the Respondent. Thus, the Respondent would not be expected to "[d]escribe [Alpha's] compen- sation program, including wage rates and fringe benefits. (Id., item 81.) Similarly, I find it unlikely that the Re- spondent would be able to "[i]dentify [Alpha's] custom- ers during the last three years." (Id., item 42.) On the other hand, it is likely that the Respondent has knowl- edge of Alpha's phone number and directory listing. (Id., item 6.) In any event, rather than cover point by point all 89 items contained in the questionnaire, noting par- ticularly that the specifics thereof were barely touched on at the hearing, I recommend that whether the items in dispute are within the knowledge and/or control of the Respondent be left to the compliance stage of this pro- ceeding. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed10 ORDER The Respondent, George Koch & Sons, Inc., Evans- ville, Indiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with Sheet Metal Workers International Asso- ciation, Local Union No. 20, by refusing to provide the Union with answers within its knowledge and/or control to the questionnaire published in Appendix A to this de- cision. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Promptly furnish the Union, on request, the an- swers within its knowledge and/or control to the ques- tionnaire published in Appendix A to this decision. (b) Post at its facilities at Evansville, Indiana, copies of the attached notice marked "Appendix B."11 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by Respondent's au- thorized representative, of the shall be posted immediate- ly upon receipt and maintained by the Respondent for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent 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. 'o 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. " 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 " GEORGE KOCH & SONS, INC. 701 APPENDIX A July 21, 1987 Presented to George Koch July 21, 1987 "A" refers to George Koch & Sons "B" refers to Alpha Industries (Note: The union firm is identified as "A" and the non-union firm as "B" in the following questions.) 1. Define the geographic areas in which "A" does business. 2. Define the geographic areas in which "B" does busi- ness. 3. State the business(es) and identify all office locations of "A". 4. State the business(es) and identify all office locations of "B". 5. Identify "A's" business phone number(s) and direc- tory listing(s). 6. Identify "B's" business phone number(s) and direc- tory listing(s). 7. Identify the banking institution, branch location and account number of "A's" payroll account(s). 8. Identify the banking institution, branch location and account number of "B's" payroll account(s). 9. Identify where and by whom "A's" accounting records, corporate records and other business records are kept. 10. Identify where and by whom "B's" accounting records, corporate records and other business records are kept. 11. Identify "A's" principle [sic] accountant, principle bookkeeper and principle payroll preparer. 12. Identify "B's" principle accountant, principle book- keeper and principle payroll preparer. 13. Identify "A's" contractor license number(s) for the states where it does construction business. 14. Identify "B's" contractor license number(s) for the states where it does construction business. 15. Identify the carrier(s) and policy number(s) for "A's" Workers Compensation insurance, and other health insurance programs. 16. Identify the carrier(s) and policy number(s) for "B's" Workers Compensation insurance, and other health insurance programs. 17. Identify "A's" federal and state taxpayer identifica- tion number. 18. Identify "B's" federal and state taxpayer identifica- tion number. 19. Identify amount(s) involved, reason(s) for, and date(s) of transfer of any funds between "A" and "B". 20. Identify source(s) and amount(s) of "A's" line(s) of credit. 21. Identify source(s) and amount(s) of "B's" line(s) of credit. 22. Identify amount(s) involved and date(s) when "B" has operated its capital with a guarantee of performance by "A". 23. Identify the calendar period and terms by which "A" provides office space to "B", or is provided with office space by "B". 24. Identify "A's" building and/or office suppliers. 25. Identify "B's" building and/or office suppliers. 26. Identify by item(s) purchased, date(s) of purchase and dollar volume of purchase(s) those building and/or office supplies purchased jointly by "A" and "B". 27. Identify all business(es) that use "A's" tools or equipment. 28. Identify all business(es) that use "B's" tools or equipment. 29. Identify business(es) to whom "A" sells, rents or leases its operating equipment, office equipment, con- struction equipment or tools. 30. Identify business(es) to whom "B" sells, rents or leases its operating equipment, office equipment, con- struction equipment or tools. 31. Identify business(es) from whom "A" buys, rents or leases its tools or equipment. 32. Identify business(es) from whom `B" buys, rents or leases its tools or equipment. 33. Regarding equipment transactions between "A" and "B", identify the purchase, rental or lease rate, equipment involved, calendar period, and dollar volume of each transaction. 34. Identify business(es) to whom "A" rents, leases or otherwise provides office space. 35. Identify business(es) to whom "B" rents, leases or otherwise provides office space. 36. Identify the terms by which "A" provides office space to "B" and vice-versa. 37. Regarding equipment transactions between "A" and business(es) other than "B", identify the purchase, rental or lease rate, equipment involved, calendar period, and dollar volume of each transaction in the previous three years. 38. Regarding equipment transactions between 'B" and business(es) other than "A", identify the purchase, rental or lease rate, equipment involved, calendar period, and dollar volume of each transaction in the previous three years. 39. Identify which of the following services are pro- vided for "B" by, or at, "A": 1. Administrative 2. Bookkeeping 3. Clerical 4. Detailing 5. Drafting 6. Engineering 7. Estimating 8. Managerial 9. Patternmaking 10. Sketching 11. Other 40. Identify which of the following services are pro- vided for "A" by, or at, "B": 1. Administrative 2. Bookkeeping 3. Clerical 4. Detailing 5. Drafting 702 6. Engineering 7. Estimating 8. Managerial 9. Patternmaking 10. Sketching 11. Other DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 41. Identify "A's" customers during the last three years. 42. Identify "B's" customers during the last three years. 43. Identify customers that "A" has referred to "B". 44. Identify customers that "B" has referred to "A". 45. What customers of "B" are now or were formerly customers of "A". 46. Regarding customers identified above as common to "A" and "B", for each company state the calendar period and dollar volume of work performed for the cus- tomer. 47. Does "A" negotiate jobs to obtain work? 48. Does "B" negotiate jobs to obtain work? 49. Does "A" bid jobs to obtain work? 50. Does "B" bid jobs to obtain work? 51. Identify those persons who bid and/or negotiate "A's" work. 52. Identify those persons who bid and/or negotiate "B's" work. 53. Identify by customer, calendar period and dollar volume any job(s) upon which "A" and "B" have bid competitively. 54. Identify by customer, calendar period and dollar volume any work "A" has subcontracted to "B", or re- ceived by subcontract from "B". 55. Identify by customer, calendar period and dollar volume projects on which "A" has succeeded "B", or been succeeded by "B". 56. Identify work "A" performs on "B's" products or jobs. 57. Identify work "B" performs on "A's" products or jobs. 58. Identify where and how "A" advertises for em- ployee hires. 59. Identify where and how "B" advertises for em- ployee hires. 60. Identify where the employees of "A" report to work. 61. Identify where the employees of "B" report to work. 62. Identify by job title or craft position the number of persons employed by "A" per pay period for the last three years. 63. Identify by job title or craft position the number of persons employed by "B" per pay period for the last three years. 64. Identify by job title or craft position and respective employment dates those employees of "A" who are, or have been, employees of "B". 65. Identify by job title or craft position and respective employment dates those employees of "B" who are, or have been, employees of "A". 66. Identify by job title or craft position and transfer dates those employees transferred between "A" and "B". 67. Identify projects of each company on which these employees were working at the time of transfer. 68. Identify "A's" supervisors, job superintendents and foreman or other supervisory persons with the authority to hire, transfer, suspend, layoff, recall, promote, dis- charge, assign , reward or discipline other employees or who are responsible to direct employees, or adjust their grievances, or effectively recommend such action for the last three years. 69. Identify "B's" supervisors, job superintendents and foreman or other supervisory persons with the authority to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward or discipline other employees or who are responsible to direct employees, or adjust their grievances, or effectively recommend such action for the last three years. 70. Regarding those supervisory persons described above as common to "A" and "B", identify the period(s) of employment with each company. 71. Identify those at "A" who have authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline supervisory personnel or ef- fectively recommend such action. 72. Identify those at "B" who have authority to hire transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline supervisory personnel or ef- fectively recommend such action. 73. Identify those at "A" otherwise actively involved with day-to-day management or operation. 74. Identify those at "B" otherwise actively involved with day-to-day management or operation. 75. Identify by project, personnel involved and date of event, any occasion when "A's" personnel was author- ized to, or actually performed, a supervisory function for "B„ 76. Identify by project, personnel involved and date of event, any occasion when "B's" personnel was author- ized to, or actually performed, a supervisory function for "A„ 77. Identify "A's" managerial personnel having author- ity to formulate and effectuate management policies, or who are otherwise able to exercise discretionary action within or even independently of established policy. 78. Identify "B's" managerial personnel having author- ity to formulate and effectuate management policies, or who are otherwise able to exercise discretionary action within or even independently of established policy. 79. Identify by title and respective date of employment thosemanagerial personnel of "A" who were ever em- ployed by "B". 80. Identify by title and respective date of employment those managerial personnel of "B" who were ever em- ployed by "A". 81. Describe "B's" compensation program including employee wage rates and fringe benefits. 82. Identify "A's" representative (s) who establish or otherwise control the labor relations policy. 83. Identify "B's" representative(s) who establish or otherwise control the labor relations policy. 84. Identify "A's" labor relations representative(s). 85. Identify "B's" labor relations representative(s). GEORGE KOCH & SONS, INC. 703 86. Identify "A's" owners, officers, directors and 88 . Identify places and dates of "A's" directors' meet- shareholders, and the percentage of ownership interest ings for the last three years. (or number of shares) of each. 89. Identify places and dates of "B's" directors' meet- 87. Identify "B's" owners, officers, directors and share - ings for the last three years. holders, and the percentage of ownership interest (or number of shares) of each.