NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
PDK Investments, LLC and International Brotherhood of Electrical Workers, Local Union 20. Case 16–CA–26292
April 24, 2009
DECISION AND ORDER
By Chairman Liebman and Member Schaumber
On December 29, 2008,
Administrative Law Judge Michael A. Marcionese issued the attached bench decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply
brief.
The
National Labor Relations Board[1] 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 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
Respondent, PDK Investments, LLC,
1. Delete paragraph 2(b) and reletter the subsequent paragraphs
accordingly.
2. Substitute the attached notice for that of the administrative law judge.
Dated,
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Wilma B. Liebman, |
Chairman |
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Peter C. Schaumber, |
Member |
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(Seal) National Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated 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 benefit and protection
Choose not to engage in any of these protected activities.
We
will not refuse to bargain collectively with International Brotherhood
of Electrical Workers, Local Union 20 by failing and refusing to provide the
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We
will promptly furnish the
PDK Investments, LLC
Linda
M. Reeder, Esq.,
and Kelly Pagan, Esq., for the General Counsel.
Bruce
E. Buchanan, Esq.,
for the Respondent.
Duane
R. Nordick, Esq., for
the Charging Party.
BENCH DECISION
Statement of the Case
Michael A. Marcionese,
Administrative Law Judge. I heard this case in
After hearing
the testimony of the witnesses, reviewing the documentary evidence, and
considering the arguments made by counsel for the parties at the hearing, I
rendered a bench decision in accordance with Section 102.35(a)(10) of the
Board’s Rules and Regulations. There is no dispute that the
I
hereby certify the accuracy of the portion of the transcript, pages 142–162,
containing my bench decision. A copy of that portion of the transcript is
attached to this decision as “Appendix A.”
Conclusion of Law
By failing and
refusing, since June 24, 2008, to furnish the Union with the information requested
in the Union’s April 4 and June 9, 2008 letters, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning of Section 8(a)(1)
and (5) and Section 2(6) and (7) of the Act.
Remedy
Having found
that the Respondent has engaged in certain unfair labor practices, I find that
it must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act. Specifically, the Respondent
will be ordered to provide the
On these
findings of fact and conclusions of law and on the entire record, I issue the
following recommended3
ORDER
The Respondent,
PDK Investments, LLC,
1. Cease and
desist from
(a) Refusing
to bargain collectively with International Brotherhood of Electrical Workers,
Local Union 20, by failing and refusing to provide the Union with relevant and
necessary information requested by the
(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 effectuate the policies of the Act.
(a) Furnish
the Union with the information requested in its April 4, 2008 letter and advise
the Union whether the Respondent’s tools had been retagged, as requested in the
(b) On
request, bargain collectively and in good faith with the Union with regard to
the wages, hours, and other terms and conditions of employment of employees in
the appropriate unit specified in the collective-bargaining agreement between
the Respondent and the
(c) Within 14
days after service by the Region, post at its facility in
(d) 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.
Dated,
APPENDIX A
142
JUDGE
MARCIONESE: Okay. Now that I've had a chance to
21 hear all of
the evidence in this case and consider the arguments
22
that the parties have made in closing and reviewed the evidence,
23
including the documentary evidence, I'm prepared to issue my
24
decision as I had indicated previously pursuant to Section
25
102.35(a)(10) of the Board's Rules and Regulations.
143
1 Now, the Board requires, even though
that it is a bench
2 decision,
that I still include much of the standard things that
3 you would
find in a written decision, so I will go through a
4 statement of
the case, jurisdiction. I have to make
those
5 factual
findings.
6 And we'll start off with the way this case
was initiated,
7 and that was
by the filing of a charge by the International
8 Brotherhood
of Electrical Workers, Local Number 20, the union
9 herein, on
June 30 of 2008. Based upon that charge,
the General
10 Counsel has
issued first a complaint and notice of hearing on
11 September
30, 2008, and then an amended complaint on November
12 24, 2008.
13 The amended complaint alleged that the
Respondent, PDK
14
Investments, LLC, had violated Section 8(a)(5) and (1) of the
15 Act by
failing and refusing to furnish the union with
16 information
requested by the union. The complaint further
17 alleged
that the requested information is necessary for and
18 relevant to
the union's performance of its statutory duties as
19 exclusive
collective-bargaining representative of the
20
Respondent's employees.
21 The Respondent filed its answer to the
amended complaint
22 on November
24, 2008, as well, essentially denying the unfair
23 labor
practice allegations and raising several affirmative
24 defenses, including
that the parties had an 8(f) bargaining
25
relationship and that Respondent had already served timely
144
1 notice under
the contract of its intent not to be bound by any
2 subsequent
agreements.
3 And I don't think that's really an issue
in this case.
4 There's no
dispute the parties seem to agree that it is an 8(f)
5
relationship, and General Counsel isn't seeking any relief or
6 remedy
beyond the expiration of the current agreement, so I
7 don't need
to address those defenses here.
8 With respect to jurisdiction, Respondent
has also admitted
9
in its amended answer that it is a
10
corporation with offices and a place of business in Balch
11
Springs,
12
as an electrical contractor.
13 Respondent further admitted that it
annually provided
14
services valued in excess of $50,000 to commercial office
15
buildings within
16
excess of a million dollars from these operations, and based
17
upon these admissions, I find that the Respondent is an employer
18
engaged in commerce within the meaning of Section 2,
19
subparagraphs (2), (6) and (7) of the Act, and Respondent has
20
further admitted that the union is a labor organization within
21
the meaning of Section 2(5) of the Act.
22 Now, with respect to the specific ULP,
there's really no
23
dispute. Respondent is a member of NECA,
the
24
chapter, and as such, has recognized the union as the exclusive
25
collective-bargaining representative of its employees performing
145
1 electrical
work within the union's trade jurisdiction and
2 geographic
jurisdiction, and that it is, in fact, a party to the
3 current
collective-bargaining agreement that has been negotiated
4 between NECA
and the union, which is effective until November 30
5 of 2010.
6 The only issue raised by the pleadings,
the only real
7 dispute here
is whether the Respondent had a duty under the Act
8 to furnish
the union with the information that it requested, and
9 that falls
into two types of information, although having heard
10 all the
evidence, it's really all one category.
11 But the first allegation is that the
union requested
12 answers to
a list of 79 questions, probing the relationship
13 between the
Respondent and several other entities, and the
14 request was
initially made on April 4 of 2008 by letter, which
15 is in
evidence, and the Respondent replied initially, also by
16 letter on
April 18, 2008, not furnishing the information at that
17
time, but I'll get into the contents of the correspondence when
18
I get into the facts in more detail.
19 The second item of information is
contained in a letter
20
dated June 9, which the letter reiterated the request for the
21
initial 79 pieces of information but also asked several
22
additional specific questions, one of which was an answer to the
23
question whether the Respondent tools had been retagged, and
24
we'll get into that as I pursue this, and the Respondent did
25
reply to that information request.
146
1 As General Counsel pointed out, it
answered some of the
2
questions. The only one it did not
answer is the one regarding
3
the retagging of tools, and it also did not provide any answers
4
to those 79 questions in the questionnaire attached to the first
5
letter. And it was shortly thereafter --
that was June 24, the
6
employer's response -- that the union actually filed the instant
7
charge.
8 Now, generally the parties -- at least
General Counsel
9
went through a very long recitation of the case law, and the
10
Respondent has also cited several cases.
There really isn't any
11
legal dispute in this case as to what the law is. Everybody
12
knows that under Board law, an employer has the duty to provide
13
a union upon request with information that is relevant to the
14
performance of its statutory duties.
Acme Industrial is the
15
lead case, and that's 385
16
decision.
17 And the duty extends not only to negotiations,
but to
18
administration and enforcement of the collective-bargaining
19
agreement. It's also pretty well
established that in
20
determining relevance, the Board applies a very liberal
21
discovery-type standard, and essentially the Board has indicated
22
if the information is of any potential or probable relevance or
23
can be of use to the union in the administration of the
24
contract, then it meets the standard of relevance to supply
25
information in the collective-bargaining relationship.
147
1 Now, the particular type of information
requested here
2
does not directly relate to unit employees' wages, hours or
3
terms and conditions of employment which are presumptively
4
relevant. Everyone agrees on that.
5 And everyone also agrees that where the
union does request
6
information concerning matters outside the bargaining unit, such
7
as information regarding the existence of a possible single
8
employer, double-breasted or alter ego relationship, the union
9
has the burden of demonstrating relevance, and in addition to
10
the cases cited by the General Counsel, I would cite Shoppers
11
Food Warehouse, 315 NLRB 257, a 1994 case; Contract Flooring
12
Systems, Inc., 344 NLRB 925 (2005); and Cannelton Industries,
13
339 NLRB 996 (2003).
14 And everyone agrees here as well that
the standard for
15
relevance in these types of cases is whether the union has a
16
reasonable belief supported by objective evidence. I've heard
17
that from both sides in their closing arguments. So essentially
18
what we're left with is a factual dispute as to whether, in
19
fact, such an objective basis for a reasonable belief exists in
20
this case.
21 Now, the General Counsel went on to cite
a number of cases
22
where the Board has addressed that very issue and the types of
23
evidence that they found sufficient, and I won't repeat all of
24
those cases. And as General Counsel has
pointed out, the union
25
doesn't need to prove the actual existence of any such
148
1
relationship. It doesn't have to prove
that any potential
2
grievance filed under the collective-bargaining agreement would
3
have merit. It doesn't have to show that
the information it
4
relies upon is accurate or ultimately reliable, and it can
5
reasonably rely on hearsay evidence.
6 Now, in the closing argument, Respondent
indicated that
7
the language regarding the information not having to be accurate
8
or reliable was mere dicta, but if it is dicta, it's been
9
repeated so many times in so many Board cases that it must have
10
the force of law at this time, and I have not come across a
11
single case where the Board has dealt with this type of
12
information where they have not used that phrase. So they must
13
mean it when they say that the information doesn't have to be
14
accurate or ultimately reliable for the union to rely upon it in
15
making such a request. Otherwise, why
would they repeat it so
16
frequently?
17 As the parties all agree, something more
than a mere
18
suspicion or speculation must be shown in order to establish
19
that the union is entitled to this type of information. Now,
20
the only current dispute which seems to exist in this area of
21
the law, which none of the parties have really addressed -- I
22
don't think it's really even of issue in this case -- is at what
23
point a union has to disclose these facts upon which it relies
24
in making a request for information regarding the existence of
25
an alter ego, single employer or double-breasted relationship.
149
1 The Board historically has said that the
union does not
2
need to produce -- to disclose the facts it's relying upon. It
3
merely needs to state the reason it's requesting this
4
information. Recently, based on some
disagreement with the
5
Circuit Courts, two Board members indicated that they think that
6
the union does have to disclose the reasons.
One of those Board
7
members is no longer on the Board, so I don't know if the Board
8
will ever adopt that position.
9 But in any event, as I will indicate
previously, in this
10
case the union did disclose not only its reason for requesting
11
the information, but also a summary or a statement of the
12
evidence it was relying upon. And I'll address
whether that
13
evidence is, in fact, supported here, but at least the letter,
14
the last letter that was sent to the employer, did disclose a
15
recitation of facts that would meet even that standard that
16
Board member Schaumberg would require.
17 Now, in terms of the actual factual
evidence, what the
18
General Counsel offered essentially in this case was the
19
testimony of one witness, the union's business manager and
20
financial secretary and the author of the information request,
21
Mr. A.C. McAfee.
22 And Mr. McAfee testified that shortly
before he sent the
23
first letter on April 4, he received a report from one employee,
24
Rudy Ayala, that this individual had been approached by the
25
employer, PDK Investments, and offered the opportunity to work
150
1
for the nonunion side of the company and that a company called
2
Guild Commercial and Tenant Services was operating out of the
3
same location with the same officers as PDK Investments.
4 Now, Mr. McAfee testified that this
report led him to be
5
concerned whether the Respondent was operating an alter ego, and
6
he cited the contract recognition clause as well as the
7
jurisdictional language in the contract, defining the union's
8
work as indicating that it would be violated if the Respondent
9
had, in fact, set up an alter ego to avoid its obligations under
10
the contract and not pay the wages and benefits required.
11 As a result, Mr. McAfee sent the April 4
letter, and the
12
letter -- I'll quote it for the record.
He addressed it to Mr.
13
Zagar at PDK Investments'
14 It says, "IBEW Local Union 20 has
become aware that your
15
company has been operating Guild Commercial and Tenant Services
16
as a nonunion company. As part of IBEW
Local Union 20
17
investigations of this matter, we are contacting you directly
18
for pertinent information. We require
that you supply us with
19
information concerning PDK Investments, LLC, relationship with
20
nonunion company for the purpose of administering the inside
21
agreement.
22 "Please respond to the attached
questionnaire which is
23
directed at the time period of the most recent labor agreement.
24
Please provide all information. To determine
the
25
appropriateness of a grievance and/or determine whether these
151
1
matters can be resolved in negotiations in a timely fashion,
2
IBEW Local 20 requires a response within two weeks from the date
3
of this letter."
4 So the letter, while stating a reason as
I think indicated
5
previously, did not set forth what the union was relying upon in
6
making the request. Attached to the letter
is a 16-page
7
questionnaire consisting of 79 questions, asking for detailed
8
information regarding the Respondent and the purposed nonunion
9
company, and this is a questionnaire, either identical or
10
similar to one which the Board has dealt with in other cases,
11
cited -- I think General Counsel has cited some of the cases
12
where this questionnaire has come up.
13 And all of the information seems to
relate to what the
14
Board would normally look to if it were evaluating an alter ego
15
case in terms of the multitude of factors that the Board has
16
indicated it considers in determining whether an employer is an
17
alter ego or a single employer, and the Board has also in alter
18
ego cases said no one factor is determinative.
19 Although some factors, such as common
ownership and
20
control of labor relations, are more important than others,
21
certainly all of the items in the questionnaire would relate to
22
those types of factors that the Board would look at if it were
23
evaluating alter ego case.
24 Now, Mr. McAfee testified further that
he didn't stop with
25
the sending of the letter, but that, in fact, he continued to
152
1
investigate. He assigned an official or
someone from his
2
office, Chris Williams, to observe personally what was going on
3
at the company's facility, as well as at various work sites.
4 He testified that he also checked out a
website, and as
5
Mr. Buchanan correctly points out, he did not identify the exact
6
website he looked at, and he really did not -- Mr. McAfee did
7
not tell us what he saw on the website, other than that there
8
were a number of Guild companies or companies with the Guild
9
name operating out of the same address with common offices, but
10
that is, at least, information that he did address and identify
11
personally having observed.
12 In addition, while awaiting a response
from the Respondent
13
to the April 4 letter, he received a handwritten statement from
14
another employee of the Respondent and a member of the union,
15
Mr. Terrell, and that's in evidence as General Counsel's Exhibit
16
6. And the statement which I will read
in its entirety states
17
that:
18 "At 3:25 p.m. on April 9, '08, Paul
Prachyl came to the
19
Crescent office complex to deliver a breaker for Tom McMann. At
20
that time, he informed Tom and I that Guild Commercial and Guild
21
Electric would be splitting up and not share the same office
22
space. Guild Commercial would keep the
shop in Balch Springs,
23
and the union side would find new office space.
After he made
24
the delivery, he was to look at a new location.
25 "Paul also made the statement that
we, the union side,
153
1
would be taking direction from him and him only, and not from
2
anyone from someone from the Guild Commercial side. Paul
3
instructed us to start painting over the Guild name on our
4
ladders and tools and mark PDK on all the tools and ladders.
5
The Guild name would remain with the open shop, and the union
6
side would maybe get a new name, PDK.
7 "He also said the trucks would
still have the Guild name
8
no them. The union side would sub work
from the open shop side
9
as needed. Tom McMann and I were told
this information together
10
on April 9, 2008."
11 And Mr. McAfee indicates that this is
information that, in
12
fact, he did receive and rely upon in pursuing the information
13
request that he initially made on April 4.
Now, Mr. McAfee also
14
testified that he received reports from Mr. Williams, indicating
15
that another company, Guild Commercial and Tenant Services, was
16
observed performing electrical work at commercial buildings
17
where the Respondent was or previously had worked as a union
18
contractor, and that a vehicle with the word "Guild" on the
19
side -- and he did not identify any other logo or language on
20
the truck other than that -- had been seen delivering material
21
to both union and nonunion jobs.
22 Now, while this investigation was going
on, the Respondent
23
did finally reply to the April 4 letter with a letter from Mr.
24
Zagar dated April 18, which acknowledged receipt of the union's
25
request and the accompanying questionnaire and stated that, "In
154
1
order to evaluate your request for this voluminous information,
2
please explain the particular relevance of each question and
3
subpart of the question."
4 Now, Mr. McAfee admittedly did not
respond to that request
5
until June 9 of 2008, and he testified that that was because he
6
was continuing to investigate and receive this information that
7
he described before preparing his response.
Now, in this
8
response which was dated June 9, Mr. McAfee, at paragraph 2,
9
answers, in fact, the question from Mr. Zagar as to the
10
explanation for the relevance of the information.
11 In the letter, Mr. McAfee states,
"Local 20 formulated its
12
information request after it was brought to Local 20's attention
13
that furloughed union members were being encouraged to perform
14
work for the nonunion side of the shop."
And that apparently
15
relates to Mr. Ayala's statement to him about someone offering
16
him employment opportunity with the nonunion company.
17 "Upon further investigation,"
the letter continuing,
18
"Local 20 learned, among other things, that Guild Electric,
19
Guild Technologies, PDK Investments, and/or GCATS Investments
20
have been sharing the same office, mailing address, website,
21
warehouse, equipment and personnel."
And this apparently refers
22
to what Mr. McAfee observed on the website, although as Mr.
23
Buchanan points out, he only identified in his testimony having
24
seen that they shared the same office and officers.
25 "Moreover, the alleged nonunion
side has been performing
155
1
work that in the past had been performed union." And this is in
2
reference to the reports that Mr. McAfee had received from Mr.
3
Williams, as well as the handwritten statement from Mr. Terrell.
4 And then Mr. McAfee goes on in his
letter, quoting, "Since
5
my letter of April 4, 2008, it has come to my attention that
6
Guild, Guild Technologies, PDK, and GCATS have made several
7
operational changes. In addition to
answering my letter of
8
April 4, 2008, please describe in detail each operational change
9
made by Guild, Guild Technologies, PDK, and/or GCATS since April
10
4, 2008, including but not limited to whether tools have been
11
retagged, offices have been moved, supervisors have been
12
reassigned, and changes have been made to payroll practices."
13
And these are clear references to items that have been
14
highlighted in Mr. Terrell's statement that was faxed to Mr.
15
McAfee in April.
16 Okay.
Now, the reply that Mr. McAfee received is the June
17
24, 2008, letter from Mr. Zagar in which he acknowledges receipt
18
of the June 9 letter and states that -- claims that the union --
19
and I'll quote -- "failed to provide any justification or
20
explanation of the relevance of the 79 questions submitted in
21
early April. Your failure to do so confirms
that this
22
burdensome questionnaire is nothing more than a fishing
23
expedition."
24 Then Mr. Zagar purports to go on and
respond to each of
25
the specific questions that were asked in the June 9 letter, and
156
1
in answering those questions, in fact, Mr. Zagar confirms at
2
least one of the reports that Mr. McAfee had received from Mr.
3
Terrell, which is that, in fact, PDK Investments, LLC, did move
4
its office recently.
5 And although it states it was to get
closer to its
6
longstanding customers and markets and hopefully grow its
7
business opportunities, certainly that's a confirmation that the
8
information that Mr. McAfee had received from Mr. Terrell was
9
more than a mere suspicion or speculation, and it also lends
10
some credence to whatever Mr. Terrell had reported he was told
11
by Mr. Prachyl.
12 Now, in response to -- and that essentially
-- I mean,
13
General Counsel called 6(11)(c) Mr. Zagar, but really did not
14
offer much other evidence, other than Mr. McAfee's which is the
15
heart of the case.
16 In response to this evidence, the
Respondents essentially
17
attempted to show that these reports that Mr. McAfee was relying
18
upon from the employees, Mr. Ayala, Mr. Terrell, and Mr. Bryant,
19
were unreliable, because each for his own reason had a grudge
20
against the employer and a reason not to tell the truth.
21 Respondent also attempted to show that
the union was
22
mistaken in its belief that the companies were operating out of
23
a common facility or using the same trucks and equipment or
24
performing some work, but it's clear from the response of the
25
June 24 letter that at least until recently, they probably had
157
1
been operating out of the same facility, and it was only
2
recently that PDK moved.
3 And the fact that -- even though Respondent
claims that
4
the union may have been mistaken and offered to show that, in
5
fact, the companies were separate and not double-breasted or
6
single employer alter ego, the Respondent is attempting to rely
7
on evidence that it did not share with the union in the first
8
instance, and information that's peculiarly within the
9
possession of the Respondent, and certainly that does not negate
10
the evidence that the union had upon which it relied in forming
11
its belief that there was something going on that would impact
12
the collective-bargaining unit.
13 With respect to the claims that the
employee reports could
14
not be relied upon, that the individuals were not credible
15
because they had been either demoted or terminated or there
16
might have been a criminal complaint against one of them,
17
certainly with respect to the criminal complaint, Mr. McAfee was
18
not even aware of it at the time that he received the report
19
from Mr. Ayala, so it certainly would not have played any role
20
in his thinking in terms of whether Mr. Ayala's report was
21
accurate or not.
22 And although they may have had some disagreements
with the
23
company, that by itself does not indicate that their statements
24
could not be believed, certainly where subsequently the
25
Respondent confirmed at least one of the statements from Mr.
158
1
Terrell indicating that there had been a change in the company,
2
i.e., a recent move, which tends to support that maybe some of
3
the other statements made to Mr. Terrell also were accurate.
4 And anyway even if, as the General
Counsel points out,
5
even if these reports from these employees turned out to be
6
unreliable or inaccurate, if the information was fully
7
disclosed, the Board has held that the union can rely on
8
information, including hearsay and including information that
9
ultimately is unreliable or inaccurate, in making this request.
10
And also the union, in Shoppers Food Warehouse -- I'll cite that
11
again that stands for that proposition.
12 And also, too, I'll note that the
actions that Respondent
13
took after the request for information on April 4 as related to
14
Mr. Terrell and reported to Mr. McAfee, including the recent
15
move of its office, showing an attempt to physically separate
16
the two companies would also lend support to the reasonableness
17
of the belief that, in fact, the companies were somehow related.
18 And I won't address again my earlier ruling
that the
19
proffer of evidence by the Respondent in order to show that the
20
various Guild companies and the Respondent were, in fact,
21
separate entities is not relevant, because as I think it's
22
clear, it's not necessary in this case to determine whether
23
there was, in fact, a single employer or an alter ego, and by
24
making a finding with respect to the information request, that
25
does not indicate that there is, in fact, such a relationship
159
1
that existed.
2 All it says is that the union has raised
enough of a
3
question, enough of a concern, that the Respondent is required
4
as a party to the collective-bargaining relationship to share
5
the information that the union can determine whether or not
6
there is any basis to go forward with either a grievance or any
7
other complaint or claim.
8 And one other thing I'll point out with
respect to the
9
Respondent's argument in closing, that none of the evidence that
10
the GC or the union offered was objective or an objective fact,
11
you know, Respondent argued that the mere fact that the name
12
Guild appeared on the side of a truck doesn't mean anything,
13
because there are so many different Guild companies, but
14
essentially that's one of the reasons why the union had cause to
15
be concerned, because the Respondent apparently over the years
16
has used various Guild names, even with respect to the rejected
17
exhibits for both the union signatory contractor and apparently
18
another company that existed.
19 The fact that the Respondent chose to
use a name that was
20
so similar certainly can't be a reason to deny the union's
21
request for information. Such a practice
only tends to create
22
the type of confusion or suspicion or concern that would lead a
23
union to suspect that there was something amiss.
24 So having considered all of the evidence
and considered
25
the arguments of the parties and not wanting to cite all of the
160
1
cases that General Counsel has cited, I will find that the
2
General Counsel and the
3
that the union had a reasonable belief, based on objective
4
facts, that would be sufficient to warrant the request for the
5
information that was made to the Respondent, both in the April 4
6
letter and in the June 9 letter for the information regarding
7
the retagging of tools.
8 And what I will do is I will cite to a
decision by my
9
colleague Judge Fish in a case called Dodger Theatrical
10
Holdings, Incorporated. that's 347 NLRB
Number 94, a decision
11
which was adopted by the Board in which Judge Fish went through
12
a rather detailed history of the law in this area, and in
13
particular I'll cite -- this is a slip decision still; I don't
14
think it's bound volume yet.
15 And at page 16 of the slip decision, he
goes through a
16
rather exhaustive review of the many cases where the Board has
17
determined whether the union satisfied this burden, and the
18
types of evidence in all these various cases that the Board has
19
found sufficient to meet the requirement of a reasonable belief
20
based on objective facts, and many of the things that are cited
21
in these cases by Judge Fish are very similar to the types of
22
information that the union and Mr. McAfee was relying upon in
23
making his request here. And I see no
reason in this case to
24
depart from that long-established and well-settled Board
25
precedent.
161
1 Now, having found that the information
was relevant to the
2
union and also necessary for it to evaluate whether there was a
3
contract violation or the possibility for a grievance if, in
4
fact, there turned out to be an alter ego or a single employer,
5
I will find that the complaint has been violated as alleged by
6
the General Counsel.
7 Now, I find, though, that the date of
the violation would
8
occur on June 24 of 2008 and Mr. Zagar's last letter to the
9
union. The initial response to the April
4 request was not a
10
refusal to furnish information, but a request for a further
11
explanation. And certainly when
information is requested that
12
goes beyond the bargaining relationship in these types of cases,
13
the Board has indicated that an employer that is not certain of
14
the reason for the request has a right to ask for a further
15
explanation.
16 But I find that the union did provide a
sufficient further
17
explanation in the June 9 letter in which it also requested the
18
information regarding the retagging of tools, and that the
19
Respondent's failure to answer those questions and continuing
20
refusal to respond to the questionnaire as shown in the June 24
21
letter constitutes the unfair labor practice under Section
22
8(a)(5) of the Act.
23 Now, I will prepare, when I prepare my
written order, a
24
notice and an order that will be consistent with these types of
25
cases. Under the Board's Rules and
Regulations with a bench
162
1
decision, essentially what I'm required to do now is upon
2
receipt of the transcript containing the bench decision, I must
3
certify the accuracy of the transcript pages, make any
4
corrections if necessary, and then serve a copy of that with the
5
recommended order on the parties, and from that date, the
6
parties have their rights to file any exceptions to my decision,
7
to any findings that I've made, and any rulings that I may have
8
made at the hearing.
9 And I'll refer you to the Board's Rules
and Regulations
10
with respect to the procedure for how to go about filing any
11
exceptions with the Board in
12
you'll have to await the transcript and my actual written order,
13
certifying the bench decision, and attached to that will be the
14
order that I will be recommending to the Board.
APPENDIX
B
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations
Board has found that we violated 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 benefit and protection
Choose not to engage in any
of these protected activities.
We will not refuse to bargain collectively with
International Brotherhood of Electrical Workers, Local Union 20 by refusing to
furnish the Union, on request, with information that is relevant and necessary
to the
We will not in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights guaranteed you by
Section 7 of the Act.
We will furnish the
PDK Investments, LLC
[1] Effective midnight December 28, 2007, Members
Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in
anticipation of the expiration of the terms of Members Kirsanow and Walsh on
December 31, 2007. Pursuant to this
delegation, Chairman Liebman and Member Schaumber constitute a quorum of the
three-member group. As a quorum, they
have the authority to issue decisions and orders in unfair labor practice and
representation cases. See Sec. 3(b) of
the Act.
[2] The Respondent has 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.
Member Schaumber does
not necessarily agree with Board precedent holding that a requester may simply
state a reason for its information request without giving any factual basis for
the request. See, e.g., Dodger Theatrical Holdings, 347 NLRB
953, 953 fn. 3 (2006), citing Hertz Corp. v. NLRB, 105 F.3d 868, 874
(3d Cir. 1997).
Here, the judge properly found
that the
[3] We have deleted par. 2(b) of the
judge’s recommended Order because a general bargaining order is not warranted
to remedy this information request violation. See
1 All dates are in 2008 unless otherwise indicated.
2 The General Counsel agreed that the parties have an 8(f), rather than 9(a) relationship.
3 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 purposes.
[4] If
this Order is enforced by a judgment of a