A-Plus Roofing, Inc.

National Labor Relations Board - Board Decisions

Jul 11, 1989

295 N.L.R.B. 967 (N.L.R.B. 1989)

A-PLUS ROOFING
A-Plus Roofing, Inc. and Roofers' Local Union No.
40, United Union of Roofers , Waterproofers and
Allied Trades, AFL-CIO. Case 20-CA-22006
July 11, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On February 8, 1989 , Administrative Law Judge
Jerrold H. Shapiro issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
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 brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, A-Plus
Roofing, Inc., San Rafael, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
' The Respondent has excepted to some of the judge 's credibility find-
ings. 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 Cit. 1951)
We have carefully examined the record and find no basis for reversing
the findings.
David F. Sargent and Lisa Rosof, for the General Coun-
sel.
Matthew L. Aronica (Thierman, Cook, Brown & Mason),
for the Respondent.
Roger A. Carnagey, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JERROLD H . SHAPIRO, Administrative Law Judge. The
hearing in this case held on November 16, 1988, is based
on an unfair labor practice charge filed by Roofers'
Local Union No. 40, United Union of Roofers , Water-
proofers and Allied Trades , AFL-CIO (Union), on June
14, 1988, and a complaint issued July 20, 1988, on behalf
of the General Counsel of the National Labor Relations
Board (Board), by the Regional Director for Region 20
of the National Labor Relations Board , alleging that A-
Plus Roofing, Inc. (Respondent), has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(5) of the National Labor Relations Act (Act), by failing
and refusing to furnish to the Union certain information
requested by the Union, which the complaint alleges was
967
necessary and relevant to the Union's performance of its
duties as the exclusive bargaining representative of the
Respondent's roofing employees. Respondent filed an
answer denying the commission of the alleged unfair
labor practices.'
On the entire record, from my observation of the de-
meanor of the only witness , Attorney Roger A. Carna-
gey, and having considered the posthearing briefs sub-
mitted by the counsels for the General Counsel and Re-
spondent, I make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. Respondent 's collective-bargaining relationship
with the Union
Respondent , a corporation , is a roofing contractor in
the building and construction industry . During all times
material herein, by virtue of Section 8(f) of the Act, the
Union has been the exclusive bargaining representative
of a unit of Respondent's employees who do roofing
work, and is a signatory with Respondent to a collective-
bargaining agreement covering those employees which
does not expire until July 31 , 1989. This agreement was
entered into in 1986 when Respondent and the Union
signed an agreement binding Respondent to the provi-
sions of a master collective -bargaining agreement be-
tween an employer association and the Union and two of
the Union's sister local unions . Respondent agreed to
comply with the terms of the master agreement which
were applicable to "the Union's area" of the master
agreement and, pursuant to the terms of the master
agreement, agreed to recognize the Union as the exclu-
sive collective-bargaining representative of Respondent's
roofers employed within the Union's territorial jurisdic-
tion of San Francisco and San Mateo counties . However
article XIV of the master agreement provides that when
Respondent assigns employees employed within the
Union's territorial jurisdiction to work outside of that ju-
risdiction , Respondent is obligated to pay them at a mini-
mum the same wages and fringe benefits as they would
have received if they were working within the Union's
territorial jurisdiction and to make fringe benefit contri-
butions on their behalf into the trust funds which cover
the Union's territorial jurisdiction.2
' Respondent's answer admits it is an employer engaged in commerce
within the meaning of Sec 2(6) and (7) of the Act and meets one of the
Board's applicable discretionary jurisdictional standards . Also Respond-
ent's answer admits that the Union is a labor organization within the
meaning of Sec. 2(5) of the Act
8 Art. XIV, entitled "Work Performed in Another Jurisdiction" reads:
When sent by an Individual Employer to supervise or perform work
specified in this Agreement outside the geographical jurisdiction of
the Local Union, employees shall be paid the total of the wage scale
and fringe amounts for his Local Union area or the total of the wage
scale and fringe amounts of the local union area in which he is work-
ing, whichever is higher , plus all necessary transportation, traveling
time, board and expenses while employed outside the geographical
jurisdiction of the Local Union In instances where an employee is
working outside of his Local Union's geographical area , fringe con-
Continued
295 NLRB No. 101
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent 's collective-bargaining agreement with the
Union contains a schedule of wage rates and provides for
vacation , health and welfare , and pension benefits for the
covered employees . The agreement obligates Respondent
to fund the aforesaid fringe benefits by making monthly
payments on behalf of the unit employees to the Roofers'
Local Union No. 40 Area Trust Funds.
2. The Union's request for information and
Respondent 's response
Pursuant to Section 1776 of the California Labor
Code, Respondent is required to prepare and maintain
certified payroll records for all public work projects. In
this regard section 1776(a) through (d) of the California
Labor Code, reads as follows:
(a) Each contractor and subcontractor shall keep
an accurate payroll record , showing the name, ad-
dress, social security number, work classification,
straight time and overtime hours worked each day
and week , and the actual per diem wages paid to
each journeyman , apprentice , worker, or other em-
ployee employed by him or her in connection with
the public work.
(b) The payroll records enumerated under subdi-
vision (a) shall be certified and shall be available for
inspection at all reasonable hours at the principal
office of the contractor on the following basis:
(1) A certified copy of an employee 's payroll record
shall be made available for inspection or furnished
to the employee or his or her authorized repre-
sentative on request.
(2) A certified copy of all payroll records enumer-
ated in subdivision (a) shall be made available for
inspection or furnished upon request to a repre-
sentative of the body awarding the contract, the
Division of Labor Stat dards Enforcement, and
the Division of Apprenticeship Standards of the
Department of Industrial Relations.
(3) A certified copy of ail payroll records enumer-
ated in subdivision (a) ' ' shall be made available
upon request by the public for inspection or
copies thereof made; provided, however, that a
request by the public shall be made through either
the body awarding the contract , the Division of
Apprenticeship Standards , or the Division of
Labor Standards Enforcement. If the requested
payroll records have not been provided pursuant
to paragraph (2), the requesting party shall, prior
to being provided the records , reimburse the costs
of preparation by the contractor, subcontractors,
and the entity through which the request was
made . The public shall not be given access to the
records at the principal office of the contractor.
(c) Each contractor shall file a certified copy of
the records enumerated in subdivision (a) with the
entity that requested the records within 10 days
after receipt of a written request.
(d) Any copy of records made available for in-
spection as copies and furnished upon request to the
public or any public agency by the awarding body,
the Division of Apprenticeship Standards, or the
Division of Labor Standards Enforcement shall be
marked or obliterated in such a manner as to pre-
vent disclosure of an individual 's name, address, and
social security number . The name and address of
the contractor awarded the contract or performing
the contract shall not be marked or obliterated.
On May 20, 1988,9 the Union, through its attorney,
Roger A. Carnagey , wrote Respondent 's President Cary
Fabiani and secretary Phyllis Wesson requesting Re-
spondent 's unexpurgated certified payroll records for
nine of its public work projects. The letter reads as fol-
lows:
Please consider this letter as a formal request for
information relating to the wages , terms and other
conditions of employment of your roofing employ-
ees (journeymen and apprentices ) under the terms
of the collective bargaining agreement in effect be-
tween your company and Roofers ' Local 40 since at
least 1986 . As you know, the union is very con-
cerned about problems that have come to its atten-
tion regarding the proper payment of wages (both
overtime and regular), hours worked, and whether
other provisions of the collective bargaining agree-
ment have been appropriately applied and imple-
mented by your company over the past two year
period.
As such , Local 40 requests that you provide it
with the unexpurgated certified payroll records for
each of the following projects on which you have
performed roofing construction and/or maintenance
work since execution of the collective bargaining
agreement:
1) Roofing of the California State Prison at
Avenal , California; Housing Facilities, Bid Pack-
age 7; Awarding Agency-State of California,
Department of Corrections;
2) Roofing of the California State Prison at
Avenal , California ; Infirmary, Bid Package 12;
Awarding Agency-State of California, Depart-
ment of Corrections;
3) Re-Roofing , Fort Miley VA Hospital, San
Francisco , California; Contract
#B662C1287/SW; Awarding Agency-Veterans'
Administration , U.S. Government;
4) Re-Roofing , San Francisco Youth Guidance
Center, Phase I, Job #4782A; Awarding
Agency-San Francisco Department of Public
Works;
5) Re-Roofing , San Francisco Youth Guidance
Center, Phase II, Job #4783A; Awarding
Agency-San Francisco Department of Public
Works;
tributions will be made into the funds which cover his Local Union's
rnPA_ - 3 Unless stated otherwise , all dates hereinafter refer to the year 1988.
A-PLUS ROOFING
6) Re-Roofing , Alice Griffith Low Income
Housing Project , Project #Cal 1-18(4); Awarding
Agency-San Francisco Housing Authority;
7) Re-Roofing , Hunters View Low Income
Housing Project, Project #Cal 1-18(3); Awarding
Agency-San Francisco Housing Authority;
8) Roofing of the Monterey County Sheriffs
Public Safety Building, Salinas, California;
Awarding Agency-County of Monterey, Board
of Supervisors; and
9) Re-Roofing , Redwood Center, Redwood
City, California,. Job #4792A; Awarding
Agency-San Francisco Department of Public
Works.
The aforementioned records should be transmitted
to the undersigned as legal counsel to Roofers'
Local 40 pursuant to this request and the duty to
furnish information necessary and appropriate to the
administration of the collective bargaining agree-
ment as required by the National Labor Relations
Act, § 8(a)(5).
Please provide the above-specified documents
and information to this office on or before June 1,
1988 . Again , it is emphasized that these records
should be provided to the union in their complete
original form without deletion , expurgation , modifi-
cation or other change in order that we may be able
to correspond the individual names of employees
with the appropriate wage and other data and make
further inquiry as may be necessary in our adminis-
tration of the collective bargaining agreement.
On May 21 Respondent's secretary , Phyllis A.
Wesson , wrote Attorney Carnagey , in response to his
May 20 information request, as follows:
As you are aware A-Plus Roofing, Inc. and specifi-
cally Mr . Fabiani and myself are represented by
legal counsel . Insofar as you are legal counsel for
Roofers' Local 40, we feel your request to be inap-
propriately directed . Please submit your request and
further correspondence to the law firm of Thier-
man, Cook , Brown & Mason.
On receipt of Respondent's May 21 response , Attorney
Carnagey, as instructed , mailed a copy of his above-de-
scribed May 20 information request to the law firm of
Thierman , Cook, Brown & Mason.
Attorney Carnagey received no response to his re-
quest, so, on June 14, on behalf of the Union, he filed the
unfair labor practice charge in this case with the Board's
Regional Office which docketed it as Case 20-CA-
22006, and on July 20, pursuant to that charge, the com-
plaint issued in this proceeding.
On July 25 Attorney Carnagey received an unsigned
transmittal memo dated July 22 from Attorney Matthew
L. Aronica of the law firm of Thierman, Cook, Brown &
Mason . The memo stated:
RE: A-Plus Roofing, Inc. Case No. 20-CA-22006-
Enclosed please find: a photocopy of July 18, 1988
969
A-Plus Roofing Payroll Journal . Please contact me
if you have any questions or comments.
Attached was a one -page handprinted document dated
July 18 and titled "A-Plus Roofing, Inc.-Payroll Jour-
nal." It listed 20 names and for each name showed, for
the 6-month period of January through June, the number
of hours and the hourly rate of pay.
3. The reasons for the Union's request for
information
In the latter part of 1987 the Union instructed Attor-
ney Carnagey to investigate whether Respondent was
complying with the terms of its collective-bargaining
agreement with the Union. During his investigation At-
torney Carnagey concluded there was a likelihood Re-
spondent was violating the wage, hour, and fringe bene-
fit provisions of the agreement in certain respects. It was
because of this belief that Attorney Carnagey, on behalf
of the Union , on May 20 requested that Respondent fur-
nish the Union with its unexpurgated certified payroll
records for the nine named public works projects.
Attorney Carnagey requested Respondent to supply
certified payroll records, rather than just payroll records,
because he was advised by representatives of the Union
and a representative of the Roofers' Local Union No. 40
Area Trust Funds, that the Trust Funds' auditor was
unable to determine whether Respondent was properly
reporting compensable hours to the trust funds, in ac-
cordance with the provisions of the governing collective-
bargaining agreement, because Respondent had not made
available to the auditor certain payroll records which
were essential to such an audit.
During his investigation to determine whether Re-
spondent was complying with the terms of its collective-
bargaining agreement with the Union, Attorney Carna-
gey received from his investigator a copy of Respond-
ent's payroll for the week ending April 8, 1987, for the
roofers it employed at the California State Prison project
in Avenal, California4 and also received from either the
Union or the Roofers' Local Union No. 40 Area Trust
Funds a monthly remittance form submitted by Respond-
ent to the Trust Funds with Respondent 's fringe benefit
contribution payments for the month of April 1987. A
comparison of this payroll record and the monthly remit-
tance form indicates it is possible Respondent was violat-
ing its contract with the Union by misclassifying employ-
ees, by underpaying employees , and by not making suffi-
cient monthly fringe benefit payments to the Trust Funds
on behalf of employees . This was one of the reasons for
Attorney Carnagey 's May 20 information request.
During Attorney Carnagey's investigation to deter-
mine whether Respondent was complying with the terms
of its collective-bargaining agreement with the Union, his
investigator gave him declarations signed by Respond-
ent's roofing employee, Javier Munoz Mendoza, and Re-
spondent's former roofing employee Roberto Garcia
4 Attorney Carnagey also received from his investigator copies of
other payroll records , but, except for the above -described payroll record
for the week ending April 8, 1987 , all of the others lacked the names of
the roofing employees employed on the project or projects
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a/k/a Fernando Curiel . These declarations showed that
during the term of Respondent 's collective-bargaining
agreement with the Union these employees had worked
for Respondent on projects covered by the agreement
and, according to their declarations , Respondent had vio-
lated the contractual provisions dealing with wages,
hours, and fringe benefits . Attorney Carnagey testified
that based on these declarations, as well as the declara-
tions submitted by several other employees which indi-
cated Respondent was violating various wage and hour
provisions of its agreement with the Union , he decided
to make his May 20 information request on behalf of the
Union . He further testified that in making the informa-
tion request he also relied on the written reports submit-
ted to him during the investigation by his investigator, to
the extent that those reports reflected what was stated in
the employees ' declarations.
During the hearing in this case Attorney Carnagey
produced for Respondent counsel 's inspection the decla-
rations of employees Garcia and Mendoza , but declined
to produce the several other employee declarations he
relied on in making the May 20 information request, and
refused to produce for Respondent 's inspection the re-
ports prepared by his investigator which reflected what
the declarations stated . Attorney Carnagey , in declining
to produce these materials , took the position that since
they had been prepared under his direction by his inves-
tigator in anticipation of litigation , he was privileged to
refuse to produce them under the work product doctrine.
Attorney Carnagey further testified his reason for pro-
ducing the declarations of employees Garcia and Mendo-
za was he had already given them to Respondent's coun-
sel in connection with pretrial discovery related to other
litigation involving the Union and Respondent.
B. Discussion and Conclusionary Findings
As described in detail supra, Respondent , a roofing
contractor in the building and construction industry, is
signatory to a collective-bargaining agreement with the
Union, sanctioned by Section 8(f) of the Act, which
covers the terms and conditions of employment of Re-
spondent 's roofing employees . Accordingly, during the
term of the collective-bargaining agreement , Respondent
was obligated by Section 8(a)(5) of the Act to furnish to
the Union, on request , the information needed by the
Union to administer and police the agreement. W B.
Skinner, Inc., 283 NLRB 989 (1987).
As described in detail supra, on May 20, the Union re-
quested Respondent to furnish it with payroll records for
nine of Respondent 's public works projects performed
during the term of its collective -bargaining agreement
with the Union. The Union explained to Respondent that
it needed this information to determine whether the
wage and hour provisions , as well as other provisions, of
the parties ' collective-bargaining agreement "have been
appropriately applied and implemented by [Respondent]
over the past two year period ." The question presented
is whether, under Section 8(a)(5) of the Act, Respondent
was obligated to furnish the information, in whole or in
part and, if so, whether, by its conduct, Respondent sat-
isfied its obligation . I shall set out the applicable legal
principles and evaluate the evidence in the light of those
principles.
An employer, pursuant to Section 8(a)(5) of the Act,
has an obligation to provide requested information
needed by the bargaining representative of its employees
for the effective performance of the representative's
duties and responsibilities . NLRB v. Acme Industrial Co.,
385 U.S. 432, 435-436 (1967). The employer's obligation
includes the duty to supply information necessary to ad-
minister and police an existing collective-bargaining
agreement (Id. 435-438), and, if the requested informa-
tion relates to an existing contract provision it thus is
"information that is demonstrably necessary to the union
if it is to perform its duty to enforce the agreement.
" A. S. Abell Co., 230 NLRB 1112-1113 (1977).
Where the requested information concerns employees'
names, addresses , wage rates , job classifications , or other
related information pertaining to employees within the
bargaining unit covered by the agreement, this informa-
tion is presumptively relevant and the employer has the
burden of proving lack of relevance .5 With respect to
such information "the union is not required to show the
precise relevancy of the requested information to par-
ticular current bargaining issues." Procter & Gamble Mfg.
Co., supra at 1315. Where the request is for information
concerning employees outside of the bargaining unit, the
union must show that the information is relevant. Brook-
lyn Union Gas Co., 220 NLRB 189 (1975); Curtiss-Wright
Corp., 145 NLRB 152 (1963), enfd. 347 F.2d 61, 69 (3d
Cir. 1965). In either situation , however, the standard for
relevancy is the same : a "liberal discovery -type stand-
ard." Loral Electronic Systems, 253 NLRB 851, 853
(1980); Acme Industrial, supra at 432, 437. Thus informa-
tion need not necessarily be dispositive of the issue be-
tween the parties, it need only have some bearing on it.
As the court said in Acme Industrial, supra at 437: "This
discovery-type standard decided nothing about the
merits of the union 's contractual claims ." See also Con-
rock Co., 263 NLRB 1293, 1294 (1982) ("An employer
must furnish information that is of even probable or po-
tential relevance to the union's duties"). This standard of
relevancy applies to all requests for information, al-
though, as noted earlier, where the request applies to in-
formation outside of the bargaining unit, the requesting
party has the burden of showing relevance.
Once the initial showing of relevance has been made,
"the employer has the burden to prove a lack of rel-
evance
.
. . or to provide adequate reasons as to why he
cannot, in good faith, supply such information." San
Diego Newspaper Guild, supra at 863 , 867. Where the rel-
evance of requested information has been established, an
employer can meet its burden of showing an adequate
reason for refusing to supply the information by demon-
strating a "legitimate and substantial" concern for em-
ployee confidentiality interests which might be compro-
mised by disclosure . Detroit Edison v. NLRB, 440 U.S.
American Commercial Lines, 291 NLRB 1066, 1067 (1988); Trustees of
the Masonic Hall, 261 NLRB 436 , 437 (1982), Safelite Glass, 283 NLRB
929 (1987); Proctor & Gamble Mfg. Ca v. NLRB, 603 F.2d 1310, 1315,
1316 (8th Cir . 1979); San Diego Newspaper Guild Local 95 v. NLRB, 548
F.2d 863 , 867 (9th Cir 1977).
A-PLUS ROOFING
301, 315, 318-320. In resolving issues of asserted confi-
dentiality, the Board first determines if the employer has
established any legitimate and substantial confidentiality
interest and then balances that interest against the union's
need for the information . Detroit Edison, id. at 315, 318;
Minnesota Mining & Mfg. Co., 261 NLRB 27, 30 ( 1982);
Pfizer Inc., 268 NLRB 916 (1984). However, where the
employer fails to demonstrate a legitimate and substantial
confidentiality interest, the union 's right to the informa-
tion is effectively unchallenged , and the employer is
under a duty to furnish the information . Oil Workers
Local 6-418 v. NLRB, 711 F.2d 348, 360 (D.C. Cir.
1983); NLRB v. Jaggars-Chiles-Stovall, Inc., 639 F.2d
1344, 1346-1347 (5th Cir. 1981); NLRB v. Associated
General Contractors of California, 633 F.2d 766 (9th Cir.
1980).
On May 20, by letter, the Union asked Respondent to
furnish it with the unexpurgated certified payroll records
for nine public work roofing projects on which its roof-
ers performed work during the term of Respondent's col-
lective-bargaining agreement with the Union and, in its
letter, explained to Respondent it was requesting the
payroll records so it could determine whether the wage
and hour provisions , as well as other provisions, of its
agreement with the Respondent , "have been appropriate-
ly applied and implemented by Respondent over the past
two-year period." As I have found supra, the phrase cer-
tified payroll record refers to the requirement that, for
each of its public work projects , Respondent , pursuant to
section 1776(a) of the California Labor Code , "shall keep
an accurate payroll record, showing the name, address,
social security number, work classification , straight time
and overtime hours worked each day and week, and the
actual per diem wages paid to each journeyman , appren-
tice, worker, or other employees employed by [Respond-
ent.]" Thus, in conformity with settled legal principles,
supra, the Union's May 20 information request was pre-
sumptively relevant to its duty to police and administer
its collective-bargaining agreement with Respondent, in-
sofar as the request encompassed employees covered by
the agreement and insofar as it encompassed the employ-
ees' names, addresses , work classifications, hours of
work, and wage rates . E.g., American Commercial Lines,
supra at 1167 (1988); Safelite Glass, supra; Trustees of the
Masonic Hall, 261 NLRB 436, 437 (1982 ). However, in-
sofar as it encompassed the employees ' social security
numbers, it was not presumptively relevant because an
employee's social security number is not directly related
to an employee's terms and conditions of employment or
the enforcement of the collective-bargaining agreement.
Also the information request was not presumptively rele-
vant, insofar as it encompassed the employees not repre-
sented by the Union employed on three of the public
works projects for which the information was requested:
the two California State Prison projects and the Monte-
rey County Sheriff's Public Safety Building project.
These three projects were located outside of the Union's
territorial jurisdiction and, as described supra, the parties'
collective-bargaining agreement covers Respondent's
roofing workers employed within the Union's territorial
jurisdiction . However, when Respondent assigns employ-
ees 'employed within the Union's territorial jurisdiction
971
to work on projects outside of that jurisdiction , article
XIV of the agreement , supra, obligates Respondent to
pay them at least the same wages and fringe benefits as
they would have earned if they were working within the
Union's territorial jurisdiction covered by the terms of
the parties ' agreement . Under the circumstances, the
Union's information request for those three projects was
presumptively relevant, insofar as it encompassed roofing
employees employed by Respondent within the Union's
territorial jurisdiction who were assigned by Respondent
to work on those projects, but was not presumptively
relevant insofar as it encompassed employees on those
three projects who did not fall into this category.
Having found that the unit employees ' social security
numbers are not presumptively relevant to the collective-
bargaining process, and since my review of the record
reveals a lack of evidence to establish their potential or
probable relevance to the Union for the purpose of polic-
ing its agreement with Respondent or for other collec-
tive-bargaining purposes, I find Respondent was not obli-
gated , under Section 8(a)(5) of the Act, to supply the
Union with this information.
Having found that the names, addresses, social security
numbers, job classifications, wage rates, and hours of
work of the employees employed on the three public
works projects outside of the Union's territorial jurisdic-
tion, who are not assigned to work on those projects
from jobs within the Union's territorial jurisdiction, are
not presumptively relevant to the collective -bargaining
process, and since my review of the record reveals a lack
of evidence to establish the potential or probable rel-
evance of this information to the Union for the purpose
of policing its agreement with Respondent or for other
collective-bargaining purposes concerning the unit em-
ployees, I find Respondent was not obligated , under Sec-
tion 8(a)(5) of the Act, to supply the Union with this in-
formation.
Having found that the names, addresses , job classifica-
tions, wage rates , and hours of work of the employees
covered by the terms of the Union's agreement with Re-
spondent, who were employed on the nine public works
projects set forth in the Union 's information request, was
the type of information presumptively relevant to the
collective-bargaining process, I further find that the
Union was not required to initially show the relevance of
this information .6 Rather, in conformity with settled
° Respondent contends it was improperly precluded from testing At-
torney Carnagey's credibility by his refusal to produce his investigator's
reports and the declarations of employees , other than Garcia 's and Men-
doza's declarations , and argues , that in view of this , Attorney Carnagey's
testimony should be stricken insofar as it relates to his reasons for making
the May 20 information request . However , in view of my above conclu-
sion that the names , addresses, job classifications, wage rates , and hours
of work of the employees covered by the terms of the parties ' collective-
bargaining agreement were presumptively relevant to the collective-bar-
gaining process , it was not necessary for me to consider Attorney Carna-
gey's testimony concerning his reasons for making the information re-
quest , thus it is not necessary for me to rule on Respondent 's motion to
strike his testimony. I note that with respect to the portions of the May
20 information request which I have found were not presumptively rele-
vant to the Union 's duties as the unit employees ' bargaining agent, Attor-
ney Carnagey 's testimony fails to establish that this information was of
probable or potential relevance to the Union 's duties as the unit employ-
ees collective -bargaining agent
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
legal principles , supra, the Respondent had the burden
either of proving lack of relevance or providing ade-
quate reasons why it could not, in good faith , supply the
information . E.g., San Diego Newspaper Guild, supra.?
Respondent defends its failure to comply with the
Union's May 20 information request, as follows : (1) The
request was made in bad faith to harass Respondent; (2)
The request was made to assist Roofers' Local Union
No. 40 Area Trust Funds in litigation against Respond-
ent; (3) The General Counsel failed to prove Respondent
maintains certified payroll records for any or all of the
nine public work projects covered by the Union 's infor-
mation request; (4) The request was overly burdensome;
(5) Pursuant to the Act's limitations period , Section 10(b)
of the Act, the Union is only entitled to information re-
lating back 6 months prior to the filing of the Union's
unfair labor practice charge; (6) The information fur-
nished by Respondent on July 22 satisfied its obligation
to comply with the Union 's information request; (7) The
California Labor Code required that the Union 's infor-
mation request be made to certain governmental agencies
of the State of California , rather than directly to Re-
spondent ; (8) The information requested violated the
State of California 's Labor Code and Administrative
Code, insofar as Respondent 's disclosure of the requested
information would reveal the wages , hours, and address-
es of named employees ; (9) The disclosure of the request-
ed information , insofar as it would reveal the wages,
hours and addresses of named employees , would violate
the right of privacy guaranteed to those employees by
the State of California's constitution . For the reasons
below , all of Respondent 's defenses are without merit.
In support of its contention that the Union 's informa-
tion request was undertaken in bad faith in an effort to
harass Respondent, the Respondent argues that such an
inference is warranted from the fact that no contract ne-
gotiations were currently in progress between the parties
when the Union requested the information and because
the demand was unduly burdensome . Respondent 's argu-
ment that the lack of current contract negotiations be-
tween the parties warrants the inference of bad faith, is
too frivolous to warrant discussion . Respondent 's further
argument that the burdensome nature of the Union's
demand warrants an inference of bad faith is without
merit because there is no showing that the Union had
any reason to believe its information request would be
unduly burdensome. Indeed there is no evidence that in
fact the Union's request was unduly burdensome. Re-
spondent never told this to the Union and, as discussed
infra, Respondent presented no evidence that in fact the
request was unduly burdensome.
r I note that even where, as here , a union's information request was
broadly drawn as to include information to which the union had no right
under Section 8(a)(5) of the Act, the employer must ordinarily disclose
that portion of the requested information which the union is entitled to
receive. See, for example , Electrical Workers ME v. NLRB, 648 F.2d 18
(D.C. Cir. 1980). For it is settled that , "the mere fact that a union's re-
quest encompasses information which the employer is not legally obligat-
ed to provide does not automatically excuse him from complying with
the union 's request to the extent that it also encompasses information
which he would be required to provide if it were the sole subject of the
demand ." Oil Workers Local 6-418 v NLRB, supra at 361, quoting with
approval , Fawcett Printing Corp., 201 NLRB 964, 975 (1973)
Respondent 's contention that the real reason the Union
sought the information was to assist Roofers' Local
Union No. 40 Area Trust Funds in their lawsuit against
Respondent is not supported by any evidence and is con-
trary to Attorney Carnagey 's credible and undisputed
testimony . In any event , the fact that some of the infor-
mation requested might be helpful to the Trust Funds in
their litigation against Respondent does not render the
information irrelevant for the purposes requested or oth-
erwise excuse its nonproduction . For, where information
is requested for a legitimate and proper purpose, "it
cannot make any difference that there may also be other
reasons for the request or that the data may be put to
other uses." Utica Observer-Dispatch v. NLRB, 229 F.2d
575, 577 (2d Cir. 1956); see also NLRB v. Associated Gen-
eral Contractors of California , supra at 772 ; Prudential In-
surance Co. v. NLRB, 412 F.2d 77, 84-85 (2d Cir. 1969).
This is especially true in the instant case because the
Trust Funds' lawsuit against Respondent , which involves
the enforcement of the parties' contractual fringe benefit
trust fund provisions , is inextricably related to the
Union's effort to monitor and police the terms of the
governing collective-bargaining agreement.
Regarding Respondent 's contention that the General
Counsel has failed to prove Respondent maintains certi-
fied payroll records for any or all of the nine public
work projects encompassed by the Union 's information
request, as described supra, the Respondent was required
by the State of California 's Labor Code to maintain such
records . Moreover , in response to the Union 's informa-
tion request, Respondent did not indicate , expressly or
by implication, that it did not have the certified payroll
records requested by the Union . These circumstances
warrant the inference that Respondent maintains the cer-
tified payroll records requested by the Union.8
Respondent's claim that compliance with the Union's
information request would be unduly burdensome has
not been established . The fact that a union may ask an
employer for a large volume of information does not, by
itself, render that request "overbroad " so as to relieve
the employer from the duty to provide that information
where, as here, the information is relevant and necessary
to the union 's performance of its bargaining duties. See,
for example, J. I. Case Co. v. NLRB, 253 F.2d 149, 154,
156 (7th Cir. 1958). Also if an employer declines to
supply relevant information on the grounds that it would
be unduly burdensome to do so, the employer must not
only seasonably raise this objection with the union (J. I.
Case Co., id . at 156), but also must substantiate its de-
fense . Goodyear Atomic Corp., 266 NLRB 890, 890-891
(1983), enfd. 738 F .2d 155 , 156 (6th Cir . 1984); Whitin
Machine Works, 108 NLRB 1537 , 1538 (1954), enfd. 217
F.2d 593, 594 (4th Cir. 1954). Here Respondent not only
failed to raise this objection with the Union , but failed to
substantiate its claim that compliance with the Union's
request would be so burdensome so as to excuse its com-
pliance. Respondent did not establish any evidentiary
predicate for its claim of undue burdensomeness . It pre-
8 I also note that Respondent did not present evidence in this proceed-
ing which showed it did not maintain the certified payroll records re-
quested.
A-PLUS ROOFING 973
sented no witnesses and no documentary evidence.
Indeed Respondent chose to rest its case without pre-
senting any witnesses at all.
Also without merit is Respondent 's suggestion that it
was privileged to disclose , and the Board should order
disclosure of, only those certified payroll records for the
period within 6 months preceding the Union 's filing of
its unfair labor practice charge . Such a limitation would
be arbitrary . The Union was seeking information con-
cerning the certified payroll records maintained for
public works projects in progress during the term of the
parties' collective -bargaining agreement , so that it could
determine whether Respondent was complying with the
terms of that agreement . The Union's charge was timely
filed with respect to the Respondent 's failure and refusal
to comply with the Union 's information request . The Re-
spondent 's reliance on the 10(b) limitations period in this
context suggests that it believes it has been charged with
unlawfully entering into the contracts for the public
works projects involved . It has not.
The information furnished to the Union by Respond-
ent on July 22 did not satisfy Respondent 's obligation,
under Section 8(a)(5), to comply with the Union's May
20 information request . As described in detail supra, the
Labor Code of the State of California required Respond-
ent to maintain an accurate payroll record showing the
name, address , work classification , straight time and
overtime hours worked each day and week , and the
actual per diem wages paid to each employee employed
by Respondent on the public work projects enumerated
in the Union's information request and further required
that Respondent certify those payroll records. These
were the certified payroll records which the Union re-
quested that Respondent furnish to it for nine of the
public works projects on which Respondent had per-
formed roofing work during the term of its collective-
bargaining agreement with the Union . In response, the
Respondent did not indicate to the Union that those
records did not exist in the form requested . Rather, Re-
spondent ignored the request for several weeks and then,
only after the Union filed its unfair labor practice charge
and the Board 's General Counsel issued the complaint in
this case, on July 22 did Respondent transmit an un-
signed handprinted document to the Union which pur-
ported to be a July 18 payroll journal page . It contained
the names of 20 persons and for each name , for the
period from January through June, showed what pur-
ported to be the number of hours worked and the hourly
rate of pay . Thus, the information belatedly furnished to
the Union did not include the vast majority of the re-
quested information . Respondent did not explain to the
Union its reason for not complying with the Union's in-
formation request . Nor did Respondent present any evi-
dence in this proceeding which explains its reason for
not complying with the Union 's information request, but
instead submitted the skimpy amount of information con-
tained in its July 22 submission to the Union . In view of
these circumstances, there is no merit to Respondent's
contention that the information it furnished to the Union
on July 22 satisfied its obligation to comply with the
Union's information request.
Respondent's contention that the California Labor
Code required that the Union's information request be
made to certain state governmental agencies , rather than
directly to the Respondent, is based on section 1776(b)(3)
of the California Labor Code. This section, in pertinent
part, states:
A certified copy of all payroll records . . . shall be
made available upon request by the public for in-
spection or copies thereof made; provided, howev-
er, that a request by the public shall be made
through either the body awarding the contract, the
Division of Apprenticeship Standards , or the Divi-
sion of Labor Standards Enforcement.
However, there is no suggestion in the California Labor
Code that an employee's authorized collective -bargaining
representative , as contrasted to a member of the public,
is required to make its information request to a govern-
mental agency rather than directly to the employer who
is required to maintain the requested information. Quite
the opposite, section 1776(b) requires that an employer,
at its principal office, make available for inspection at all
reasonable hours a copy of the certified payroll records
required to be maintained under Section 1776 and further
provides at section 1776(b)(1), "[a] certified copy of an
employee's payroll record shall be made available for in-
spection or furnished to the employee or his or her au-
thorized representative on request ." Thus, as the author-
ized collective-bargaining representative of the employ-
ees covered by its collective-bargaining agreement with
Respondent, the Union, in directly asking Respondent to
furnish it with the employees' certified payroll records,
was not acting in a manner inconsistent with the provi-
sions of the California Labor Code and, by complying
with the request , Respondent would not have violated
the Labor Code.
Respondent 's contention that if it disclosed the re-
quested information, including the wages , hours, and ad-
dresses of named employees , it would violate the Labor
Code of the State of California, is based on section
1776(d) of the Labor Code, which states:
Any copy or records made available for inspection
as copies and furnished upon rquest to the public or
any public agency by the awarding body, the Divi-
sion of Apprenticeship Standards, or the Division of
Labor Standards Enforcement shall be marked or
obliterated in such a manner as to prevent disclo-
sure of an individual 's name, address, and social se-
curity number. The name and address of the con-
tractor awarded the contract or performing the con-
tract shall not be marked or obliterated.
Likewise section 16403 of the Administrative Code of
the State of California contains a comparable provision
which , in effect, states that whenever a "public agency"
furnishes certified payroll records to "the public" that
the employees' names, addresses , and social security
numbers be obliterated. However, there is nothing in
either the State 's Labor Code or Administrative Code
which indicates that when , pursuant to section 1776(b)(1)
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the Labor Code, an employee's authorized collective-
bargaining representative requests an employer to supply
it with the certified payroll record of an employee, that
the employer must obliterate the employee' s name, ad-
dress or social security number, as would be the case if a
member of "the public" made such a request to a "public
agency." In other words, by complying with the Union's
information request, insofar as it requires Respondent to
furnish employees' names and addresses, Respondent
would not violate either the Labor or Administrative
Codes of the State of California.
Respondent's contention that if it complied with the
Union's information request, insofar as it required Re-
spondent to reveal the wages, hours, and addresses of
named employees, it would violate the right to privacy
guaranteed employees by article I, section 1 of the Cali-
fornia constitution, is a frivolous contention. I have been
unable to find any legal authority and Respondent has
not cited any authority for the proposition that an em-
ployer violates an employee's constitutional right to pri-
vacy by furnishing to a labor organization which repre-
sents the employee, the employee's address or the wages
and hours of employment of the named employee. The
one case cited by Respondent, Board of Trustees of
Leland Stanford Junior University v. The Superior Court of
Santa Clara County, 119 Cal. App. 3d 516 (1980), is com-
pletely inapposite.9
Based on the foregoing I find that Respondent violated
Section 8(a)(5) and (1) of the Act by failing and refusing
to comply with the Union's May 20 request that it fur-
nish to the Union the unexpurgated certified payroll
records for the nine public works projects named in the
request, insofar as the request encompassed the employ-
ees employed on those projects who were covered by
the terms of Respondent's collective-bargaining agree-
ment with the Union, except that Respondent did not
violate the Act by failing and refusing to furnish to the
Union the employees' social security numbers.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2 (6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By refusing , during the term of its 1986-1989 collec-
tive-bargaining agreement with the Union, to supply the
Union with requested information necessary for, and rel-
evant to, the Union's ability to administer the collective-
bargaining agreement properly, the Respondent has en-
gaged in an unfair labor practice within the meaning of
Section 8(a)(5) and (1) of the Act.
4. The unfair labor practice affects commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in an
unfair labor practice, I shall recommend that it cease and
desist and take certain affirmative action necessary to ef-
fectuate the policies of the Act. I shall recommend that
Respondent provide, on request, the information request-
ed in the Union's letter of May 20, 1988, insofar as the
request encompasses those employees covered by the
provisions of the Respondent's 1986-1989 collective-bar-
gaining agreement with the Union, except that Respond-
ent is not required to furnish said employees' social secu-
rity numbers.
On the foregoing findings of fact and conclusions of
law, and the entire record, I issue the following recom-
mended t o
ORDER
Respondent, A-Plus Roofing, Inc., San Rafael, Califor-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing, during the term of a collective-bargaining
agreement with Roofers' Local Union No. 40, United
Union of Roofers, Waterproofers and Allied Trades,
AFL-CIO, to supply the Union, on request, information
necessary for, and relevant to, the Union's ability to ad-
minister the collective-bargaining agreement properly.
(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) On request, furnish the Union with the information
sought by the Union in its letter of May 20, 1988, insofar
as the request encompasses those employees covered by
the provisions of the Respondent's 1986-1989 collective-
bargaining agreement with the Union, except that Re-
spondent is not required to furnish said employees' social
security numbers.
(b) Post at its San Rafael, California office copies of
the attached notice marked "Appendix.""' Copies of the
notice, on forms provided by the Regional Director for
Region 20, after being signed by Respondent's authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the
9 Respondent's defense of confidentiality is based entirely on the
above-described provisions of the State of California's Labor Code and
Administrative Code and the State of California 's constitutional right to
privacy. Respondent otherwise presented no evidence in support of its
confidentiality defense . Since I have found that Respondent's obligation
under Sec 8(a)(5) of the Act to furnish the Union with the requested in-
formation was not inconsistent with the state law or the state 's constitu-
tional right of privacy, I need not decide what effect, if any , such a law
or constitutional mandate would have on the enforcement of Respond-
ent's obligation under Sec . 8(a)(5) of the Act.
10 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.
1 i 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 "
A-PLUS ROOFING
notices are not altered, defaced, or covered by any mate-
rial.
(c) Sign and return to the Regional Director sufficient
copies of the attached notice marked "Appendix" for
posting by Roofers' Local Union No. 40, if willing, in
conspicuous places where notices to employees and
members are customarily posted.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse, during the term of a collective-
bargaining agreement with Roofers' Local Union No. 40,
United Union of Roofers, Waterproofers and Allied
975
Trades, AFL-CIO, to supply the Union, on request, in-
formation necessary for, and relevant to, the Union's
ability to administer the collective-bargaining agreement
properly.
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 NOT, on request, furnish the Union with the
information sought by it in its letter to us dated May 20,
1988, insofar as the request encompasses those employees
covered by the provisions of our 1986-1989 collective-
bargaining agreement with the Union, except that we are
not required to furnish our employees' social security
numbers.
A-PLUS ROOFING, INC.