Conditioned Air Systems, Inc.

CONDITIONED AIR SYSTEMS 789 360 NLRB No. 97 Conditioned Air Systems, Inc. and Plumbers and Gas Fitters Local Union No. 5, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL–CIO. Case 05–CA–079299 April 30, 2014 DECISION AND ORDER BY MEMBERS MISCIMARRA, HIROZAWA, AND SCHIFFER On October 26, 2012, Administrative Law Judge Ar- thur J. Amchan issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel and Charging Party each filed an an- swering brief.1 The National Labor Relations Board has delegated 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,2 and conclusions3 and to adopt the recommended Order as modified.4 1 We deny the Respondent’s belated motion to reopen the record, ostensibly to introduce the testimony of Virginia Merrigan, the Re- spondent’s secretary-treasurer. The Respondent generally contends that her testimony will rebut the judge’s finding that she was an agent of the Respondent. However, the Respondent did not except to that finding and has failed to explain why it did not offer Merrigan’s testimony at the hearing, despite being on notice that her status as an agent was a disputed issue. Nor has the Respondent articulated with the necessary specificity what new evidence would be presented. See Sec. 102.48(d) of the Board’s Rules and Regulations. 2 The Respondent has implicitly excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative 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 Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 3 In adopting the judge’s finding that the Respondent had a duty to bargain with the Union at the time of the information request, we note that the arguments raised in the Respondent’s exceptions—namely, (1) that the letter of assent joining the multiemployer association was am- biguous and did not bind the Respondent to the 2010 collective- bargaining agreement between the association and the Union, and (2) that the Respondent should be allowed to withdraw from the multiem- ployer association due to unusual circumstances (i.e., severe financial distress)—were not presented to the judge. Similarly, the Respondent argues now for the first time that the Union acted in bad faith in making its information request. We deem all of these arguments to be untimely raised and thus waived. Yorkaire, Inc., 297 NLRB 401, 401 (1989), enfd. 922 F.2d 832 (3d Cir. 1990). We would nevertheless reject those arguments even if they were timely raised. First, contrary to the Respondent’s contention, we find that the letter of assent unambiguously bound the Respondent to both the 2007 and 2010 collective-bargaining agreements between the asso- ciation and the Union. But even if we thought otherwise, the Respond- ent had a collective-bargaining obligation to the Union at the time the information request was made. Although the record is unclear as to whether the bargaining relationship here was based on Sec. 9(a) or Sec. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Condi- tioned Air Systems, Frederick, Maryland, 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) Refusing to bargain collectively with the Union by failing and refusing to furnish it with requested infor- mation that is relevant and necessary to the Union’s per- formance of its functions as the collective-bargaining representative of the Respondent’s unit employees.” 2. Substitute the following for paragraph 2(a). “(a) Furnish to the Union in a timely manner the in- formation requested by the Union on March 22, 2012.” 3. Substitute the attached notice for that of the admin- istrative law judge. 8(f), the Respondent would be required to respond to the Union’s in- formation request in either event. If the parties’ relationship is gov- erned by Sec. 9(a), the Respondent would continue to have a statutory obligation to provide relevant and necessary information to the Union after the expiration of the 2007 agreement. If the parties’ relationship is governed by Sec. 8(f), the Respondent would be required to provide necessary and relevant information to the Union during the term of the 8(f) agreement. Trade Show Supply, 359 NLRB 977, 977 fn. 3 (2013). And here, we find that the Respondent’s adherence to the terms of the 2010 association agreement bound it to that agreement during its term. See Asbestos Workers Local 84 (DST Insulation, Inc.), 351 NLRB 19, 19–20 (2007) (adopting agreement by conduct); E.S.P. Concrete Pump- ing, Inc., 327 NLRB 711, 712–713 (1999) (same). Second, the Re- spondent’s unusual-circumstances argument is also meritless. In this respect, the Respondent’s reliance on Retail Associates, 120 NLRB 388, 395 (1958), is misplaced. That case involves withdrawal from an established multiemployer bargaining unit; it does not allow an em- ployer to withdraw from a validly adopted collective-bargaining agreement, as the Respondent seeks to do here. Finally, contrary to the Respondent’s contention, there is no evidence of bad faith on the part of the Union. Because Member Miscimarra agrees that the Respondent waived the above arguments by not timely raising them, he does not pass on them. Member Miscimarra also notes that, because the requested information was not presumptively relevant, he would follow Hertz Corp. v. NLRB, 105 F.3d 868 (3d Cir. 1997), where the Third Circuit held that the employer’s duty to respond was conditioned on the union’s disclosure of facts sufficient to demonstrate relevance unless the factual basis was readily apparent from the surrounding circumstances. In the instant case, Member Miscimarra would find that the factual basis for the Union’s request was readily apparent and he agrees with the judge’s finding that Respondent’s failure to adequately respond violated Sec. 8(a)(5). 4 We shall modify the judge’s recommended Order to conform to the Board’s standard remedial language, and we shall substitute a new notice to conform to the Order as modified and with Durham School Services, 360 NLRB 694 (2014). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 790 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain collectively with the Union by failing and refusing to furnish it with requested information that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of our unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL furnish to the Union in a timely manner the information requested by the Union on March 22, 2012. CONDITIONED AIR SYSTEMS, INC. The Board’s decision can be found at www.nlrb.gov/case/05-CA-079299 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273–1940. Patrick J. Cullen, Esq., for the General Counsel. Richard Putnam, Pro Se, for the Respondent. Francis Martorana, Esq. (O’Donoghue and O’Donoghue, LLP), of Washington, D.C., for the Charging Party. DECISION STATEMENT OF THE CASE ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Baltimore, Maryland, on September 6, 2012. The Charging Party, Plumbers and Gas Fitters Local Union No. 5 filed the charge giving rise to this matter on April 20, 2012. The General Counsel issued a complaint on July 24, 2012, and an amended complaint on August 21. The General Counsel alleges that Respondent has been violating Section 8(a)(5) and (1) of the Act since March 22, 2012, by failing and refusing to furnish the Union information it requested in a letter dated March 21 but mailed on March 22. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, Conditioned Air Systems, Inc., a corporation, is a plumbing contractor with an office in Frederick, Maryland. In the 12 months prior to the filing of the charge, Respondent performed services valued in excess of $50,000 outside of the State of Maryland. I find that Respondent is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The Union reached a collective-bargaining agreement with the Mechanical Contractors Association of Metropolitan Wash- ington, Inc. (the Association) that was effective from August 1, 2007, through July 31, 2010. On September 22, 2008, Virginia Merrigan, Respondent’s secretary-treasurer, signed a letter of assent. That letter authorized the Association to be Respond- ent’s authorized collective-bargaining representative for matters contained in or pertaining to the Association’s 2007–2010 col- lective-bargaining agreement with Local 5. The letter stated, In signing this letter of assent, the undersigned firm (Employ- er) does hereby authorize the Mechanical Contractors Associ- ation of Metropolitan Washington (hereinafter called “the As- sociation”) as its collective bargaining representative for all matters contained in or pertaining to the current or subse- quently negotiated labor agreements between the Association and Plumbers Local Union No. 5, United Association (herein- after called “the Union”). . . . This letter shall become effec- tive on 9-22-08. It shall remain in effect until terminated by the undersigned employer giving written notice to the Associ- ation and the Union at least one hundred fifty (150) days prior to the then-current expiration date of the labor agreement be- tween the Union and the Association (emphasis added). The Union and the Association entered into a subsequent collective-bargaining agreement on about July 23, 2010, which is effective from August 1, 2010, to July 31, 2014. On July 29, 2010, the Union sent Respondent a letter regarding the new 4- year agreement. The letter stated: Enclosed are two (2) copies of the Assent Letter that must be signed by each of our contractors. For your convenience, two signed copies are enclosed. We ask you to sign both; keep one for your files and mail the other back to the Local Union on or before August 13, 2010. CONDITIONED AIR SYSTEMS 791 Respondent did not sign and/or return the Assent Letter. On May 9, 2011, the Union sent Respondent another letter noting that it had not returned a signed copy of the Letter of Assent. This letter stated, This is our third and final attempt to obtain a signed copy of the Letter of Assent from you. If we do not receive your signed Letter of Assent in this office by the close of business on May 18, 2011 this matter will be turned over to our attorneys, O’Donoghue and O’Donohue, L.L.C. In that event, your Union represented employees may be pulled from work. Respondent did not return the Letter of Assent but paid em- ployees pursuant to the terms of the collective-bargaining agreement through March 2012. Additionally, Respondent reported to the Union whenever it hired or terminated employ- ees. Respondent also made payments to the Union’s various ben- efit funds. However, it fell behind in making the payments required by the collective-bargaining agreement. The trustees of the Union’s benefit funds sued Respondent in Federal Dis- trict Court. On December 14, 2010, Respondent entered into a settlement of that suit with the trustees of the benefit funds. It initially complied with the terms of the settlement and then fell behind again in making the payments required by the agree- ment. In about December 2011, a union member reported to Union Business Manager James Killeen that Respondent was using nonunion labor on a job at the Northern Virginia Community College. Respondent’s president, Richard Putnam, acknowl- edged that he was using nonunion labor to Killeen and Joseph Savia, a representative of Steamfitters Local Union 602, in a meeting that December. Another union member reported to Killeen that Respondent had started another company called Complete Air Solutions (Solutions) which was using trucks with the name Conditioned Air Systems (Systems) still painted on them.1 In January 2012, Whiting-Turner, the general contractor at the Northern Virginia Community College, entered into a subcontract with “Solu- tions.” On March 22, 2012, the Union mailed Respondent the letter which is the subject of this case. The letter stated that Local 5 was concerned that bargaining unit work was being transferred to employees of “Solutions” to avoid System’s obligations under the collective-bargaining agreement between the Union and the Mechanical Contractors Association. The letter, writ- ten by James Killeen, also stated that the Union had infor- mation supporting the conclusion that “Solutions” was an alter ego or disguised continuance of “Systems.” This letter asked Richard Putnam to describe his relationship with “Solutions” and to identify the owners and officers of “Solutions” and “Systems.” Next the letter asked Putnam to identify all jobs, including service contracts on which either 1 I find that “Solutions” and “Systems” is a less confusing way to distinguish between the two companies than “Conditioned” and “Com- plete.” company was working as of December 31, 2011, and March 21, 2012. The Union asked Putnam to identify all jobs initially awarded to “Systems” that were transferred or subcontracted to “Solutions,” and to provide documentation showing the cir- cumstances of any such job transfers. The Union’s letter asked questions regarding the identity of the employees of both companies. It also inquired regarding “Systems” equipment that was used, borrowed, sold or other- wise transferred to “Solutions” and a description of relevant transactions. The Union asked Putnam to identify all equip- ment or vehicles owned by “Solutions.” Other questions posed by the Union concerned the consid- eration given by “Solutions” to “Systems,” licenses held by each company, hours worked by “Solutions” employees, the principal payroll preparer of each company, the health insur- ance carrier for each company’s nonunion employees, transfers of funds from “Systems” to “Solutions,” and loans or lines of credit. Respondent did not provide any of this information and did not contact the Union to try to negotiate any accommodation regarding these requests. Analysis Section 8(a)(5) provides that it is an unfair labor practice for an employer to refuse to bargain with the representative of its employees. An employer’s duty to bargain includes a general duty to provide information needed by the bargaining repre- sentative for contract negotiations or administration, NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152–153 (1956). Information pertaining to employees in the bargaining unit is presumptively relevant, Southern California Gas Co., 344 NLRB 231, 235 (2005). An employer must respond to an information request in a timely manner. An unreasonable delay in furnishing such information is as much of a violation of Section 8(a)(5) of the Act as a refusal to furnish the information at all, American Sig- nature, Inc., 334 NLRB 880, 885 (2001).2 If an employer has a claim that some of the information re- quested is confidential or unduly burdensome to produce, such claims must be made in a timely fashion, Detroit Newspaper Agency, 317 NLRB 1071, 1072 (1995). The reason a confiden- tiality claim must be timely raised is so that the parties can attempt to seek an accommodation of the employer’s confiden- tiality concerns, Tritac Corp., 286 NLRB 522 (1987). The same is true with respect to a claim that satisfying the request would be unduly burdensome, Honda of Hollywood, 314 NLRB 443, 450–451 (1994); Pet Dairy, 345 NLRB 1222, 1223 (2005).3 If an employer declines to supply relevant information on the grounds that it would be unduly burdensome to do so, the em- ployer must not only timely raise this objection with the union, but also must substantiate its defense. Respondent has done neither. Respondent never advised the union that its request was unduly burdensome, and never sought clarification from the union in order to narrow the request, Pulaski Construction Co., 345 NLRB 931, 937 (2005). There is no doubt that pro- 2 This case has also been cited under the name of Amersig Graphics, Inc. 3 Also cited as Land-O-Sun Dairies. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 792 duction of the information may impose strains on an employer, but that consideration does not outweigh the union's right to the information requested. H. J. Scheirich Co., 300 NLRB 687, 689 (1990). When union requests information relating to an alleged sin- gle-employer or alter-ego relationship, the union bears the bur- den of establishing the relevance of the requested information. Reiss Viking, 312 NLRB 622, 625 (1993); Bentley-Jost Electric Corp., 283 NLRB 564, 568 (1987), citing Walter N. Yoder & Sons, 754 F.2d 531, 536 (4th Cir. 1985). A union cannot meet its burden based on a mere suspicion that an alter-ego or single- employer relationship exists; it must have an objective, factual basis for believing that the relationship exists. See M. Scher & Son, Inc., 286 NLRB 688, 691 (1987). Under current Board law, however, the union is not obligated to disclose those facts to the employer at the time of the information request. Baldwin Shop ‘N Save, 314 NLRB 114, 121 (1994); Corson & Gruman, 278 NLRB 329, 333–334 fn. 3 (1986). Rather, it is sufficient that the General Counsel demonstrate at the hearing that the union had, at the relevant time, a reasonable belief. If the Union had a reasonable objective basis for believing that an alter-ego relationship existed between Respondent and “Solutions,” it is entitled to the information it requested, Can- nelton Industries, 339 NLRB 996 (2003);4 Contract Flooring Systems, Inc., 344 NLRB 925 (2005); Z-Bro, Inc., 300 NLRB 87, 90 (1990). Several months prior to the March 22, 2010 information request, Respondent admitted to the Union that it was employing nonunion labor at the Northern Virginia Com- munity College (Tr. 18–19, 53). Union members reported to James Killeen that these employees were working for Solu- tions, rather than for Systems. They also provided Killeen with documents indicating that Whiting-Turner, the general contrac- tor, had shifted work from Systems to Solutions. I thus find that the Union had a reasonable belief that Respondent was avoiding its obligations under the collective-bargaining agree- ment by operating Solutions as an alter ego. As a result I find that the General Counsel and Union have met their burden un- 4 Current Board law does not require the Union to disclose, at the time of its information request, the facts which cause it to suspect an alter-ego or single-employer relationship exists. The United States Court of Appeals for the Third Circuit, however, generally does require the Union to disclose sufficient facts to the employer at the time of any information request to demonstrate its claim of relevance, Hertz Corp. v. NLRB, 105 F.3d 868 (3d Cir. 1997). However, the court made clear that a union does not have to communicate the facts justifying its re- quest in situations where the employer already is aware of such facts: In some situations, a union’s reasons for suspecting that discrimination is occurring will be readily apparent. When it is clear that the em- ployer should have known the reason for the union’s request for in- formation, a specific communication of the facts underlying the re- quest may not be necessary. As the ALJ noted in this case, two of Hertz’s managers testified credibly that they had no idea why the Un- ion believed that Hertz’s hiring practices might be discriminatory until they arrived at the administrative hearing. . . . 105 F.3d at 874. In the instant case, both tests have been satisfied. The Union’s March 21 letter apprised Respondent of the reasons it suspected that “Solutions” was an alter ego. Moreover, Richard Putnam was aware of the circumstances giving rise to these suspicions. der the Board and Third Circuit tests and that therefore the Union is entitled to the information it requested in March 2012 regarding the relationship between Solutions and Systems. Did Respondent have any Contractual Obligations to the Union? Respondent argues that it had no contractual relationship with the Union on two bases: first, that Virginia Merrigan did not have authority to bind Respondent by signing the letter of assent in 2008; second, that the Union’s demands that it sign new letters of assent in 2010 and 2011 establish that the 2008 document no longer bound Respondent. Despite Respondent’s contentions, Virginia Merrigan was clearly an agent of Respondent and thus bound Respondent to the Union’s contract with the Mechanical Contractor’s Associa- tion. Board law regarding the principles of agency is set forth and summarized in its decision in Pan-Oston Co., 336 NLRB 305 (2001). The Board applies common-law principles in de- termining whether an employee is acting with apparent authori- ty on behalf of the employer when that employee makes a par- ticular statement or takes a particular action. Apparent authori- ty results from a manifestation by the principal to a third party that creates a reasonable belief that the principal has authorized the alleged agent to perform the acts in question. Either the principal must intend to cause a third person to believe the agent is authorized to act for him, or the principal should real- ize that its conduct is likely to create such a belief. Respondent allowed Virginia Merrigan to represent it in many of its interactions with the Union. According to Richard Putnam, Merrigan was Respondent’s secretary/treasurer. Put- nam never advised the Union as to any restrictions on Merri- gan’s authority. Moreover, he ratified her conduct in signing the letter of assent by abiding with the terms of the Union’s collective-bargaining agreement with the Mechanical Contrac- tor’s Association, as well as by his failure to repudiate her con- duct, Service Employees Local 87 (West Bay Maintenance), 291 NLRB 82, 83 (1988); One Stop Kosher Supermarket, Inc., 355 NLRB 1237 (2010), 1241–1242. The Union insisted in its 2010 and 2011 letters to Respond- ent that it sign new letters of assent. However, Board law makes it clear that Respondent was bound to the 2010–2014 collective-bargaining agreement by virtue of signing the letter of assent in 2008. This is so because it failed to provide the Union and the Association notice of its desire to terminate its relationship with both at least 150 days prior to the expiration of the August 1, 2007–July 31, 2010 collective-bargaining agreement, Malik Roofing Corp., 338 NLRB 930 (2003); Rome Electrical Systems, 349 NLRB 745, 747 (2007). Whether or not Respondent signed additional letters of assent, as demanded by the Union, is irrelevant. Respondent was bound by its fail- ure to timely withdraw its authorization of the Association to collectively bargain with the Union, Carr Finishing Specialties, Inc., 358 NLRB 1766 (2012). CONCLUSION OF LAW Respondent has violated and continues to violate Section 8(a)(5) and (1) by failing and refusing to provide the Union with the information it requested on March 22, 2012. CONDITIONED AIR SYSTEMS 793 REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed 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 recommended5 ORDER The Respondent, Conditioned Air Systems, Inc., Frederick, Maryland, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain good faith with the Union, Plumbers and Gas Fitters Local Union No. 5, including failing to provide the Union in a timely matter with information that is relevant and necessary to the Union’s performance of its duties as the exclusive collective-bargaining representative of all em- ployees described in article II of the most recent collective- bargaining agreement between the Mechanical Contractors Association of Metropolitan Washington and Local 5, including the information the Union requested on March 22, 2012. (b) In any like or related manner interfering with, restraining, 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 effec- tuate the policies of the Act. 5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes. (a) Provide the Union with the information it requested on March 22, 2012. (b) Within 14 days after service by the Region, post at its Frederick, Maryland offices 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 authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in con- spicuous places including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since March 22, 2012. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”