J. D. Stokely Contracting Co.

1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD J. D. Stokely Contracting Company and Interna- tional Union of Operating Engineers, Local 77, AFL-CIO. Case 5-CA-19626 July 31, 1989 DECISION AND ORDER APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On February 6, 1989, Administrative Law Judge Lowell Goerlich issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions, a supporting brief, and a brief in opposition to the Respondent's 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, cross-exceptions, and briefs and has decided to affirm the judge's rul- ings, findings,2 and conclusions and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, J. D. Stokely Contracting Company, Merrifield, Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). "(a) Failing and refusing to supply the Union with the information requested by its March 10, 1988 letter." 2. Substitute the following for paragraph 2(a). "(a) Supply the Union with the information re- quested by its March 10, 1988 letter." 3. Substitute the attached notice for that of the administrative law judge. ' We deny the General Counsel 's motions to strike portions of the Re- spondent's brief. 2 The judge found the complaint allegation based on the Respondent's failure to supply relevant and necessary information requested by the Union's September 21, 1987 letter time-barred, since the charge was filed more than 6 months after the request was made. The General Counsel has cross-excepted to this finding. However , we note that the Union re- quested the same information by letter dated March 10 , 1988. This re- quest was within 6 months of the filing of the charge, and the Respond- ent does not claim that the complaint allegation pertaining to the second request is time barred. The judge found, and we agree, that the Respond- ent violated Sec. 8(a)(5) by refusing to furnish the Union the information requested in the March 10, 1988 letter. Under these circumstances, we find it unnecessary to pass on the issue that the General Counsel's cross- exception raises because finding the additional violation the General Counsel seeks would be cumulative and would not affect the remedy. 3 We shall modify the judge's recommended Order and notice to con- form to the judge's Conclusions of Law. 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 or refuse to supply Interna- tional Union of Operating Engineers, Local 77, AFL-CIO with the information requested by its March 10, 1988 letter. 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 forthwith supply the Union with the information requested by its March 10, 1988 letter. J. D. STOKELY CONTRACTING CO. Stephen C Bensinger, Esq., for the General Counsel. John William Mannix, Esq., of Washington, D.C., for the Respondent. Jeffrey Freund, Esq., of Washington, D.C., for the Charg- ing Party. DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge. The charge in this proceeding, filed on April 22, 1988, by International Union of Operating Engineers, Local 77, AFL-CIO (the Union), was served on J. D. Stokely Contracting Company (the Respondent) by certified mail on the same date. A complaint and notice of hearing was issued on June 6, 1988 . In the complaint and the amend- ments to the complaint ' it is alleged that the Respondent unlawfully withheld information requested by the Union in violation of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). The Respondent, by timely answer, denied that it had committed the unfair labor practices alleged. This case came on for hearing on October 31, 1988, at Washington, D.C. All parties were afforded full opportu- nity to be heard, to call, examine, and cross-examine wit- nesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered. On the entire record2 in this case and from my obser- vation of the witnesses and their demeanor, I make the following 1 Two amendments to the complaint were allowed at the hearing 2 There being no objection thereto, the motion on behalf of the Gener- al Counsel to correct the transcript is granted and the transcript is cor- rected accordingly. 295 NLRB No. 123 J. D. STOKELY CONTRACTING CO. 1077 FINDINGS OF FACT, CONCLUSIONS, AND REASONS THEREFOR On March 10, 1988, Jeffrey Freund, attorney for the Union, wrote John Mannix, Esq., the following letter: 1. THE BUSINESS OF THE RESPONDENT At all times material herein , the Respondent, a Virgin- ia corporation with an office and place of business in Merrifield, Virginia (the Respondent's facility), has been engaged in the business of underground utility contract- ing. During the preceding 12 months, a representative period, the Respondent, in the course and conduct of its business operations described above , performed services valued in excess of $50,000 in States other than the Com- monwealth of Virginia. The Respondent is now, and has been at all times ma- terial herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is now, and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Respondent is and has been a member of The Un- derground Utility Contractors Association of Maryland, The District of Columbia, and Virginia. The Association and the Union have been signatories to successive collec- tive-bargaining agreements, the last of which was effec- tive by its terms through August 7 , 1988. The Respond- ent has had an "ongoing bargaining relationship" with the Union since "the late '40's." At all times material, the Respondent has recognized the Union as the exclusive representative of its employees in the unit referred to in the contract between the Association and the Union. All parties agree that the relationship between the Respond- ent and the Union was and is governed by Section 8(f) of the Act. First: In her second amendment to the complaint the General Counsel has alleged: Since on or about September 21, 1987, and March 10, 1988, the Union, by letters, has requested Re- spondent to furnish the Union with a list of names, addresses and telephone numbers of all bargaining unit members. On September 21, 1987, the Union addressed the fol- lowing letter to the Respondent: In order to administer our collective bargaining agreement, I request that you immediately provide me with a list of names, addresses and telephone numbers of all operating engineers currently on your payroll. In addition, I request that you provide me each month with the names, addresses and tele- phone number[s] of any new employee[s] hired by you the previous month. Your failure to provide this information will force Local 77 to seek appro- priate relief. The Respondent made no response to this request. Dear John: On September 21, 1987, Chuck Stover wrote a letter to J. D. Stokely asking that he provide cer- tain information which the Union needed in order to police its collective bargaining agreement. En- closed is a copy of that letter. Although the Union is clearly entitled to the information and it would seemingly be simple to produce it, the Union has not received any response from Mr. Stokely. The Union wants that information. Please advise Mr. Stokely that we are again requesting that informa- tion and if we have not received it by March 17, 1988, we will take appropriate legal action. Mannix replied on March 17, 1988, by a letter to Freund: Dear Jeff: Your letter of March 10, 1988 concerning the above parties is herewith acknowledged. Please advise the undersigned of the section or subsection of the Collective Bargaining Agreement between the above parties which requires the Con- tractor to tender to the Union the data which your client is seeking. Please let me hear from you on this matter at your earliest opportunity. The letter on its face showed that a copy was sent to "J. D. Stokely Contracting Co." Freund responded to Mannix's letter on March 18, 1988: Dear John: I have your letter of March 17, 1988 . Without in- tending to be exhaustive , the information we have requested relates to Article II, Section[s] 3 and 6, Article V, Article VI, Article VII, Article VIII and various sections of Article IX. Please provide us with the information immediately. The Respondent has continued in its refusal to comply with the Union's request for the names, addresses, and telephone numbers of operating engineers. Mannix had been the designated bargaining representa- tive of the Association and the Respondent . Negotiations had been conducted between Freund and Mannix in 1986, 1987, and 1988. In matters regarding the Respond- ent, Freund had only dealt with Mannix. Second: The Respondent asserts that the information requested by the Union should be denied because it is neither relevant nor necessary for the administration of the collective-bargaining agreement. The Union's need for the information apparently arose when the Respond- ent was discovered to have been hiring nonunion em- ployees whose identities were not known to the Union. On the subject of nonunion employees John D. Stokely, president of the Respondent , testified that there was a time "back" when all the work was "being done union," but that "[t]he workers totally changed in the Metropoli- 1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tan Area and the majority, in the line of work that I do, is being done by nonunion contractors." Stokely further testified that union workers were not always available, and, thus, he hired nonunion workers. Stokely agreed that both the nonmembers and members of the Union re- ceived the same contractual benefits. According to Charles L. Stover, president and busi- ness manager of the Union, prior to sending the Septem- ber 21, 1987 letter, he had asked Stokely by phone for the information requested in the letter. Stokely respond- ent that Stover would "have to find out on [his] own." Stover's request of the Respondent was prompted be- cause it had been reported to him that there were "'non- Union operating engineers' operating equipment." Stover did not know who these nonunion workers were. Ac- cording to Stover, what was "not being enforced or ad- ministered" was "[t]he hiring of people and not letting us know about it." Stover testified that the Union requested the information "[t]o see if the contract had been proper- ly enforced." Among other things, the Respondent asserts that it is not required to furnish the Union the requested informa- tion because the nonunion employees are not covered by the agreement . I find nothing in the agreement which limits its terms to only members of the Union . Moreover, it was the practice to apply the terms of the contracts to both nonmembers and members . Both Stokely and Stover testified that the Respondent made contractually required fringe benefit contributions for both members and nonmembers. The Respondent's point is not well taken. It is obvious that the information requested by the Union was relevant and necessary for the proper per- formance of the Union's duties as the employee's bar- gaining representative and that by withholding such in- formation the Respondent violated Section 8(a)(5) of the Act.3 NLRB v. Postal Service, 841 F.2d 141, 144 (6th Cir. 1988); Hawkins Construction Co., 285 NLRB 1313, 1314 (1987); Prudential Insurance Co. v. NLRB, 412 F.2d 77, 84 (2d Cir. 1969); Columbus Maintenance Co., 269 NLRB 198 (1984); W. B. Skinner, Inc., 283 NLRB 989 (1987); Laminates Unlimited, 292 NLRB 595 ( 1989). Third: The Respondent asserts further that the com- plaint is untimely because the charge was filed more than 6 months after the Union's request for information was made on September 21, 1987. In Chemung Contracting Corp., 291 NLRB 773 (1988), the Board opined: The intended purpose of this proviso [Sec. 10(b)] is that, in the absence of a properly served charge on file, a party is assured that on any given day its li- ability under the Act is extinguished for any activi- ties occurring more than 6 months before. 3 As the Board stated in Georgetown Holiday Inn, 235 NLRB 485, 486 (1978): [I]t is well settled that the names and addresses of unit employees, like wage data, are presumptively relevant to the Union's role as bar- gaining agent either during contract negotiations or dung the term of an agreement . Hence no showing of particularized need was nec- essary. These words used by the Board are apropos to the in- stant case. The Board in Chemung concluded (id. at 774): Thus, because the operative facts establishing the violation occurred outside the 10(b) period, we find that the applicable complaint allegations are time barred and that the Board is precluded from decid- ing the underlying substantive legal issues. Accordingly, I find those allegations based on the Sep- tember 21, 1988 letter request are time barred and such allegations are dismissed. However, I find that the allegations in the second amendment to the complaint based on Freund's letter of March 10, 1988, which incorporated the September 21, 1987 letter, are not time barred, but stand in these pro- ceedings as a valid complaint, that is, if the request was properly served on the Respondent . In this regard the Respondent claims that Mannix was not its agent. The following facts support the agency status of Mannix: Mannix represented the Respondent in bargaining negoti- ations in which Freund also participated for the Union. Mannix responded to Freund's March 10 letter, sending a copy of his response to the Respondent. Thus, the Re- spondent had knowledge of the Union's request and that Mannix was processing the matter for it. In his response, Mannix initiated a dialogue with Freund on behalf of the Respondent as to the basis for the request and opened up an area for bargaining on the subject . Mannix did not advise Freund to deal directly with the Respondent, but instructed Freund to send his response to him. I find that Mannix was an agent of the Respondent. Thus, I find that the Union's request for information contained in Freund's March 10, 1987 letter was properly served on the Respondent, and that the Respondent, by withhold- ing the requested information from the Union , violated Section 8(a)(5) of the Act. I have carefully examined other contentions advanced by the Respondent and find them to be without merit. Accordingly, I find that, by not furnishing the Union with the names, addresses, and telephone numbers of all operating engineers on the Respondent 's payroll, the Re- spondent violated Section 8(a)(5) of the Act. 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, and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 2. The Union is a labor organization within the mean- ing of Section 2(5) the Act. 3. By refusing to furnish the Union with the names, addresses, and telephone numbers of all operating engi- neers on the Respondent's payroll as requested by the Union in the March 10, 1988 letter, the Respondent en- gaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. J. D. STOKELY CONTRACTING CO. 1079 REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist and take certain affirmative action de- signed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, J. D. Stokely Contracting Company, Merrifield, Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to supply the Union with the names, addresses, and telephone numbers of all operating engineers on the Respondent's payroll. (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) Supply the Union with the names, addresses, and telephone numbers of all operating engineers on the Re- spondent's payroll. (b) Post at its facility in Merrifield, Virginia, copies of the attached notice marked "Appendix."6 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's author- ized representative , shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. 4 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."