Bentley-Jost Electric Corp.

National Labor Relations Board - Board Decisions

Apr 6, 1987

283 N.L.R.B. 564 (N.L.R.B. 1987)

564 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bentley-Jost Electric Corporation and International
Brotherhood , of Electrical, Workers, Local
Union No. 494, AFL-CIO. Case 30-CA-9266
6 April 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFT
On 12 January 1987 Administrative Law Judge
Robert W. Leiner issued the attached decision. The
Respondent filed exceptions, supporting brief, and
answering brief, and the General Counsel filed
cross-exceptions, supporting brief, and answering
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 briefs 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, Bentley-Jost
Electric Corporation, Milwaukee, Wisconsin, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order.
i We deny as unnecessary the General Counsel's request for a visita-
torial provision in our order.
Paul Bosanac, Esq., for the General Counsel.
Russ R. Mueller, Esq., of Milwaukee, Wisconsin, for the
Respondent.
Neal F. Rosenberg, Business Manager, of Milwaukee, Wis-
consin, for the Union.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This
matter was heard in Milwaukee, Wisconsin, on 13 No-
vember 1986, on the General Counsel's 15 August 1986
complaint,' alleging in substance that following the
Union's request for information regarding the relation-
ship of Respondent Bentley-Jost Electric Corporation to
another employer, Respondent, in violation of Section
8(a)(5) and (1) of the National Labor Relations Act (the
Act), failed and refused to fully respond to the Union's
request. In response to the General Counsel's complaint,
Respondent filed a timely answer, dated 20 August 1986,
i The Union's underlying unfair labor practice charge was filed and
served on Respondent on 1 July 1986.
in which it admitted certain, allegations, denied others,
and denied the commission of any unfair labor practices.
At the hearing, all parties were represented by coun-
sel, were given full opportunity to call and` examine wit-
nesses, submit oral and written evidence, and _ to argue
orally on the record. At the close of the hearing, the par-
ties waived final argument and elected to file posthearing
briefs which have been carefully considered.
On the entire record, including the briefs, and taking
into account the uncontradicted and credited testimony
of the witnesses, I make the following
FINDINGS OF FACT
1. RESPONDENT AS STATUTORY EMPLOYER
As a result of stipulations and concessions at the open-
ing of the hearing, there is no dispute that Bentley-Jost
Electric Corporation, a Wisconsin corporation with an
office and place of business in Milwaukee, Wisconsin, is
an electrical contractor in the building and construction
industry. It is a member of the National Electrical Con-
tractors Association-Milwaukee Chapter, N.E.C.A., Inc.
(NECA or Association), an association of employers in
the building and construction industry existing for the
purpose, inter alia, of representing employer-members in
negotiating and administering collective bargaining
agreements with the Union. It is admitted that in the past
calendar year, a representative period of its business op-
erations, Respondent received goods, products, and ma-
terials valued in excess of $50,000 from other enterprises
in Wisconsin which enterprises received the goods, prod-
ucts, and materials directly from points outside the State
of Wisconsin. Respondent admits and I find that, at all
material times, on the basis of the above "indirect
inflow" of goods and materials, it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE UNION AS STATUTORY LABOR ORGANIZATION
Respondent admits and I find that at all times Interna-
tional Brotherhood of Electrical Workers, Local Union
No. 494, AFL-CIO (the Union), had been, and is, a
labor organization within the meaning of Section 2(5) of
the Act.2
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent for 20 years has been and is an industrial
and commercial electrical contractor, performing either
as prime or subcontractor, in four counties in and around
the Milwaukee, Wisconsin area. As noted, Respondent is
a member of NECA whose Milwaukee Chapter has 87
employers, and normally employs between 10 and 15
full-time employees including supervisors. The Union, in
bargaining NECA, represents about 1000 electrical em-
2 Respondent also admits that Louis J. Jost Jr., at all material times,
has been, and is, Respondent's president and a supervisor within the
meaning of Sec. 2(11) of the Act and an agent of Respondent within the
meaning of Sec. 2(13) of the Act. Jost is Respondent's chief operating
and executive officer.
283 NLRB No. 84
BENTLEY-JOST ELECTRIC CORP.
ployees in the four-county area in and around Milwau-
kee, Wisconsin.
At the hearing, Respondent conceded that, at all mate-
rial times, it had been a signatory to and bound by suc-
cessive collective-bargaining agreements between NECA
and the Union, the latest of which is for the period 1
June 1985 to 31 May 1988 (G.C. Exh. 2). Respondent
also admitted that the Union is the statutory collective-
bargaining representative for employees covered in the
contract unit, admittedly an appropriate unit,3 and assert-
ed that the only issue in the case was the substantive
issue, presented hereafter, relating to the lawfulness of its
failure and refusal to give 'certain information to the
Union.
The General Counsel presented, three witnesses ' (in-
cluding Louis J. Jost Jr., Respondent's president). ' Re-
spondent chose to rest on the evidentiary record as pre-
sented by the General Counsel and to rely on the legal
defenses propounded by Respondent in its pleadings,
again at the hearing, and further specified in its timely
brief. I find that the evidence raises no material issues of
fact, that the witnesses testified credibly, and that the
case presents only a legal issue.
Donald L. Statza, a Local 494 business representative,
whose duties include the enforcement ,of the Union's col-
lective-bargaining agreements, first heard of the existence
of Specialty Trades, Inc. in 1985 and learned that it was
in the electrical contracting business in the Milwaukee
area. Specialty Trades, Inc. is not ' a signatory to any col-
lective-bargaining agreement with the Union and, in par-
ticular, is not a signatory to the Association agreement
which binds Respondent.
Respondent's president, Jost, admitted that he had
heard of Specialty Trades, Inc., but declared that there
was no corporate connection between Respondent and
Specialty Trades, Inc. He testified that he knew that
Specialty Trades, Inc. was located in and Worked out of
a house owned by one Charles Schmitt on 53d Street in
Milwaukee; that it was a nonunion operation ,,engaged in
the business of plumbing, heating, and electrical contract-
ing, with the electrical work being of the same type as
performed by Respondent. Jost also admitted that an-
other location for Specialty Trades, Inc. is an answering
service called Jost Management Services, Inc., which is
located in Respondent's office (Tr. 43); and that although
Specialty Trades, Inc. had been in operation for about 2
years and performs the same type of electrical work as
Respondent (Tr. 44), it is not in competition with Re-
spondent according to his "memory" (Tr. 52).
Jost further testified that he has a son Brian Jost and a
brother Robert Jost; that Respondent's office, clerical,
Phyllis 'Sommers, had been Respondent's clerical for 6 to
8 years until a 1985 merger of six employing companies
(all controlled by or involving members of the Jost
family) which merger resulted in the creation of Jost
Management Services Inc. Sommers is the office clerical
for the merged company.
8 Sec . 2 05 of the current collective agreement , inter alia, provides,
"The .. , transfer by an individual employer of any work . . . to any
person . not recognizing the IBEW or one of its Local Unions .. .
will be deemed a material breach of Agreement." (G.C. Exh. 2 )
565
In addition, Jost testified that David Nowicki, a
former electrical inspector for the city of Greenfield,
Wisconsin, is a supervisory electrican who acquires con-
struction permits for Specialty Trades, Inc.; and that
Specialty Trades does not pay Nowicki a salary but re-
munerates him-in the form of occasional gratuities, other-
wise unspecified in the record.
Sometime in November 1985, Union Representative
Statza, reading a local newspaper ("Daily Reporter")
that carries reports of the granting of electrical permits
in municipalities in and around Milwaukee, discovered
that Specialty Trades, Inc. had been issued a construc-
tion permit in the nearby community of Wauwatosa,
Wisconsin. He obtained a copy of the permit (G.C. Exh.
14), found that David Nowicki was the supervisory elec-
trician who obtained the permit for Specialty Trades,
and that the permit showed a telephone number, pre-
sumptively the telephone number of Specialty Trades.
When union agent Statza dialed the number, he discov-
ered that it was a telephone answering service. The tele-
phone` answering service notified him that Specialty
Trades had both canceled the answering service and di-
rected the answering service to refer any problem to
Bentley-Jost.
Thereafter, in April 1986, when Union Agent Statza
continued his investigation and' discovered a Specialty
Trades permit application in Milwaukee, Wisconsin,
there was a different telephone number thereon (G.C.
Exh. 15). He called that phone number, and a woman an-
swered the phone on behalf of "S.T.I,V` When Statza
asked for Schmitt, the woman said that she would get
him, but Statza did not continue 'the conversation, Statza
thereafter sought to discover from a Bentley-Jost em-
ployee the situs of that telephone number (645-6988) and
was told that the phone bearing that number was in Re-
spondent's office.
In further search -for the identity of Specialty Trades,
Inc., Statza found that a Wauwatosa application for an
electric contractor license (G.C. Exh. T) was filed in
behalf of Specialty Trades, Inc. and signed by Louis J.
Jost Jr., as "Treas." [sic] of Specialty Trades, Inc. Jost
admitted that the signature was his. Jost, as above noted,
is president of Respondent.
Statza's continuing investigation disclosed an electrical
permit for a job submitted by Louis Jost, on behalf of
Bentley-Jost, to perform contracting work at a bank
(Mitchell Savings and Loan) in Greenfield, Wisconsin
(G.C. Exh. 8). Statza sought and obtained the permit
after he visited the bank jobsite in'order to discover who
was actually, doing the electrical work. He discovered on
the job a box containing light fixtures with .the name
"Specialty Trades' marked on the box. When Statza vis-
ited the job again, he found Charles Schmitt on the job.
Schmitt said that he was "Specialty Trades" and that
Specialty Trades had the job. The permit, as above
noted, was issued to Bentley-Jost. He said that his broth-
er and another worker were the only workers on the job.
Statza also found that Specialty Trades, Inc. had filed
an application for an electrical license in Milwaukee
sometime after August 1985 with Brian Jost being the
secretary of the applicant (G.C. Exh. 12)„ He also dis-
566 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
covered that Phyllis Sommers, Respondent's office cleri-
cal, was notarizing permit applications for electrical con-
tract work for both Specialty Trades, Inc. and Respond-
ent (G.C. Exhs. 7, 12, and 13).
In light of this information, Statza sent for the State of
Wisconsin articles of incorporation of both Specialty
Trades, Inc. and Bentley-Jost (G.C. Exhs. 9, 10, and 11).
The documents disclose no apparent relation between the
two corporations.
On the morning of 28 April 1986, Statza and another
union agent traveled by car to Schmitt's Speciality
Trades' 53d Street address in Milwaukee. They observed
a man leave the house, drive to Wauwatosa, and stop at
a jobsite where a pizza parlor was being remodeled. At
the jobsite, they took pictures of persons on the jobsite
(G.C. Exhs. 17, 18, and 19). Present on the jobsite that
morning were Respondent's president, Louis Jost, and
his brother, Jim Jost.
On 19 May 1986, Union Business Manager Neal F.
Rosenberg wrote to 'Respondent the following letter
(G.C. Exh. 3), attached to which was a questionnaire-of
44 questions concerning Respondent's and Specialty
Trades' business, suppliers, officers, directors, and em-
ployees:
It has come to our attention that your company
is, or may be, in violation of its collective bargain-
ing agreement with this union, by reason of the op-
erations by your company or its principals, of an-
other company called Specialty Trades Inc. hereaf-
ter referred to as Company B, or by the perform-
ance of work which would otherwise be performed
by your company. Specifically, we believe that
there is or may be violation of Article II, Sections
2.01 and 2.05; Article IV, Section 4.02; Article VI,
Wages; Article VIII, Sections 8.01 and 8.02; Article
IX; Article X; Article XI, Sections 11.01 and 11.06
of the Milwaukee Division Inside Wireman Agree-
ment and possible other articles.
Company B is presently performing. the same
services that were previously performed by your
company with your employees. In addition, we be-
lieve that there is a connection between your com-
pany and Company B either financially or through
management personnel , or both, and we believe that
the object of creating Company B was to circum-
vent the provisions of our collective bargaining
agreement.
Please consider _this letter a grievance. We wish
to meet- at your earliest convenience to attempt to
settle this grievance. In order to determine' whether
in fact there is a violation, we request that you pro-
vide answers to the questions on the attached ques-
tionnaire.
Please submit your response within ten days- of
the date of this letter, so that we can proceed with
the handling of this grievance under the terms of
our collective bargaining agreement.
Sincerely
Neal F. Rosenberg
Business Manager
By letter of 29 July 1986 (G.C. Exh. 4), and an accom-
panying answer sheet, Respondent's attorney Mueller an-
swered the Union.4 In particular, in the answer sheet,
Respondent denied that Bentley-Jost performed' any,
work on Specialty Trades, Inc.'s products or jobs or that
Specialty Trades, Inc. performed any work on Bentley-
Jost's jobs. It provided three other pieces- of information
with regard to Specialty Trades: it named Specialty
Trades' supervisor as Charles Schmidt [sic]; it denied
that any of its supervisors -performed work for Specialty
Trades or that any of Specialty Trades supervisors per-
formed work for it, and finally, it denied that any of its
managerial , personnel were, ever employed by Specialty
Trades or that any of Specialty Trades' managerial per-
sonnel were ever employed by Respondent. With regard
to the three dozen other questions put by the Union to
Respondent, Respondent noted, for example, that it per-
formed estimating work for Specialty Trades, Inc. (ques-
tion 22); but on other questions such as (question 33) the
identity by job titles or craft positions of the number of
employees employed by Specialty Trades, the, persons
who bid for Specialty Trades (question 28), Specialty
Trades Sources of credit (question 11), bank (question 4),
accountant (question 6), and where it kept its books and
records (question 5), Respondent failed to answer.
On 6 August 1986, the Union replied:
Your letter of 29 July 1986 is clearly an inadequate
response to the questions which we had previously
sent to you requesting information necessary to
carry out our duty as the collective-bargaining rep-
resentative. It is clear you are merely continuing
your violation of the National Labor Relations Act.
Very truly yours,
Neal F. Rosenberg
Business Manager
In response to this union accusation, Attorney Mueller,
on 11 August 1986 wrote:
4 The covering letter to Attorney Muller's response is:
Dear Mr. Rosenberg:
Enclosed herewith is a separate document on which information is
given on behalf of Bentley-Jost Electric Corp to the Questionnaire,
which you submitted with your May 19, 1986 letter to the Company,
in connection with the grievance stated in that letter.
Your Questionnaire'asks questions regarding "Company B" and
your letter of May 19, 1986, identifies this as "Specialty Trades,
Inc.". The information given on the enclosed regarding Specialty
Trades, Inc. is based on information and belief and is indicated by
"[Company B]". Any information not given for Specialty Trades,
Inc., is because such is considered of a confidential nature to that
separate corporation and the information is independent from that
which relates to the operations of Bentley-Jost Electric Corp. In
other words , the information that is given concerning Specialty
Trades, Inc. is based on direct business dealings.
You may wish to contact Mr. Richard Jacklin, 5401 Chateau
Drive, #1 Rolling Meadows, Illinois, President, Specialty Trades,
Inc., relative to the requested information that, is not provided by the
enclosed.
Unless I hear from you soon to the contrary, this reply will be
considered as having fulfilled your request for information with
regard to the stated grievance.
Very truly yours,
Russ R. Mueller
BENTLEY-JOST ELECTRIC CORP.
This is in reply to your 6 August 1986 letter rela-
tive to the Company's attempt to satisfy the Union's
request form information in connection with the
grievance identified in your letter of 19 May 1986.
Your reply to the information submitted to you
by my letter of 29 July 1986, "is ` clearly an inad-
equate response" cannot be further considered
unless you explain why you consider that to be so.
Very truly yours,
R. Mueller
By I July 1986, the Union had filed the instant unfair
labor practice charge.
A. Positions of the Parties
In short,, the General Counsel and the Union take the
position that the record here discloses that the Union
had gathered sufficient evidence to provide it with an
objective basis for believing that Respondent, in violation
of contract prohibitions, was diverting unit work and
that such evidence provided the necessary legal "trig-
ger," linking its request for information to Respondent's
relationship to work performed by nonunit employees.
Pence Construction Corp.; 281 NLRB 322 (1986); Davis
Acoustical Co., 280 NLRB ,1432 (1986); Walter N. Yoder
& ,Sons Y. NLRB, 754 F.2d 531 (4th Cir, 1985). , ,
Respondent, apparently not abandoning its 29 July
written defense of the "confidential nature" of the infor-
mation it possessed regarding Specialty Trades, also de-
fends on the proposition that the obligation to furnish in-
formation in these cases is a product of the collective-
bargaining process. As such, Respondent argues that
whatever the knowledge acquired by the Union with
regard to the operations of Specialty Trades, Inc., such
knowledge remains irrelevant because the Union, in sup-
port ' of its grievance, never notified Respondent of the
facts supporting • the Union's conclusion that Respondent
was violating the collective-bargaining agreement. On
this basis, Respondent' concludes that the General Coun-
sel has failed to prove the "triggering" mechanism: to
make relevant the requested information to some necessi-
ty that such information begiven to the Union: Respond-
ent further contends that its letter of 29 July 1986 to the
Union, answering some of the Union's questions, was
both a product of the collective bargaining process and a
demonstration of Respondent's good faith in answering
the Union's questions. The secondary defense is that, in
any event, Respondent satisfactorily' answered the
Union's request form information based on any obliga-
tion 'cre:ated by the preliminary information supplied by
the Union; and that any statutory obligation for Re-
spondent to further reply must be based on further union
information to trigger' Respondent's further duty to
supply other information.
Nothing in the"record, including Respondent's corre-
spondence and argument, indicated that Respondent did
not possess the requested information or construed the
Union's 44-question questionnaire as a demand for irrele-
vant material. Indeed Respondent not only answered
some of the questions put to it by the Union but initially
567
defended its failure to further answer questions principal-
ly on the ground that the information was "confidential."
With regard to an employer' s obligation to furnish in-
formation to the employees' collective-bargaining agent,
concerning the alleged diversion of unit work in viola-
tion of a collective-bargaining agreement in cases when,
as" here, it is alleged that the nonunion (emnployer) recipi-
ent of the transferred work is in some way,related to the
transferring employer, the Board's rules may be found in
cases such as Pence Construction Corp., supra; Davis
Acoustical Co., supra; Washington Materials v. NLRB, 803
F.2d 1333 (4th Cir. 1986); NLRB x Acme Industrial Co.,
385• U.S. 432 (1967); and Associated General Contractors of
California, 242 NLRB 891 (1979), enfd. 633 F.2d 766 (9th
Cir. 1980). These rules establish an employer's obligation
to furnish the Union the requested information if there is
a probability that such information" is relevant and will
be of use to the union in fulfilling its statutory duties and
responsibility as the employees' exclusive bargaining rep-
resentative. The Union's informed administration of the
contract, including protection and preservation of unit
work (a mandatory subject of bargaining), as here, is
such a statutory duty in addition to any contract prohibi-
tions against transfer of unit work. Cf. Southern, Nevada
Builders Assn., 274 NLRB 350 (1985)."
The Board, in determining relevancy of the requested
information, uses a liberal discovery-type standard. Infor-
mation regarding terms and conditions of employment of
unit employees represented by the Union is presumptively
relevant. Where the information, as here, concerns em-
ployees or operations other than those represented by
the union, i.e., Specialty Trades, Inc.,- there is no such
presumption. Ohio Power Co., 216 NLRB 987 (1975),
enfd. 531 F.2d 1381 (6th Cir. 1976). In this latter situa-
tion, the burden is on the union to establish, relevance of
the requested information.
Here, as in Pence Construction, the General Counsel
and the Union assert that the information gathered by
Union Representative Donald L. Statza (and, reported to
Union Business Manager Neal Rosenberg) provided an
objective, factual, and reasonable basis , for believing that
unit work was being diverted from Respondent, thus ful-
filling the Union's burden of establishing the relevancy of
the information requested.
B. Discussion and Conclusions
I am indebted to the analysis of Judge Cullen in Pence
Construction Corp., supra . As noted therein, the union
had the burden of showing the relevancy of nonunit in-
formation, but the burden is not an exceptionally heavy
one. The information requested need not necessarily be
dispositive of the issues between the parties. It must only
have some bearing on it. Pfizer, Inc., 268 NLRB 916, 918
(1984). The employer's obligation, in short, is to furnish
information that has a probable or''potential relevance to
the union's "performance of its duties and obligations"
because a broad discovery rule is crucial to full develop-
ment of the role of collective bargaining contemplated
by the Act. Pence Construction Corp., supra, citing cases.
There must be "informed 'administration" of the collec-
568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tive agreement , by the union . Ibid., citing Safeway Stores,
252 NLRB 1323 (1980).
In cases involving the unlawful diversion of work,
whether in involving an alter ego , subcontracting, or
merely tranferring or diverting unit work , the burden on
the union is to establish the relevancy of the requested
information as an aid to contract administration including
contract violation . The right of the union to "informed"
contract administration is a statutory , not a mere con-
tract, right . Southern Nevada Builders Assn ., 274 NLRB
350 (1985).
The proof necessary to "trigger " the employer's obli-
gation to furnish information relating to work transfer in
alleged violation of the contract is not such as to estab-
lish that, in fact, there was unlawful diversion of the
work, but merely that the Union "had a reasonable belief
that enough facts existed to give rise to a reasonable
belief that" there was an unlawful diversion of work
away from unit employees . Pence Construction Corp.,
citing Walter N. Yoder & Sons , 754 F. 2d 531 , 536 (4th
Cir. 1985), enfg. 270 NLRB 652 (1984). Further, it is
clear from Pence Construction , that there need , not be a
pending grievance pertaining to the alleged contract vio-
lation in order to trigger the employer 's obligation to
surrender the requested information . In the instant case,
however, the Union, citing Respondent 's alleged viola-
tion of specific contract provisions protecting unit work,
formally- made a grievance out of its demand . The obli-
gation to supply information extends not only to infor-
mation to support the Union 's decision whether or not to
file or process a grievance, but, as above noted, to that
which is necessary for the "informed administration" of a
collective-bargaining agreement.
Although the present facts do not necessarily show
either the existence of a single-integrated,unit of employ-
ees employed by Respondent and Specialty Trades, Inc.
or that Specialty Trades, Inc. was established or exists to
unlawfully divert work out of Respondent 's unionized
unit, the Union did submit preponderant credible evi-
dence , through the testimony of Donald Statza, and the
record shows (based in part on 'the admissions of Louis
Jost Jr.) that Respondent is a constituent part of Jost
Management Service,` Inc.; that Specialty Trades , Inc. is
physically located in Jost Management Services, Inc.,
that Specialty Trades , Inc. maintains a telephone answer-
ing service wherein Jost Management answers for Spe-
cialty Trades, Inc. using a Jost Management clerical; that
Specialty Trades, 'Inc. makes applications for licenses and
permits through Respondent 's president, Louis Jost Jr. as
Specialty Trades' treasurer and Brian Jost (son of Louis
Jost Jr.); that Specialty Trades (Schmitt) and its employ-
ees were found at the Mitchell Saving and Loan jobsite,
in Greenfield, Wisconsin, where the electrical job permit
was issued not to Specialty Trades but to Respondent;
and yet materials on the job were in the name of Special-
ty Trades , Inc. In addition , the union agents followed a
person apparently in the employ of Specialty Trades Inc.
to a Specialty Trades, Inc. jobsite and there found Re-
spondent's president Louis Jost Jr. and Jim Jost, Re-
spondent having allegedly no corporate or business rela-
tionship to Specialty Trades, Inc. As a prima facie
matter, the evidence clearly shows, at least , an intermix-
ing or confusion of bidding, corporate officials, produc-
tion materials , and employees between Respondent and
Specialty Trades, Inc.
Because Specialty Trades, Inc. admittedly performs
electrical contracting work of the same nature as Re-
spondent, I conclude that the Union, on the above evi-
dence, had a reasonable basis for its belief that Respond-
ent, in violation of the collective-bargaining agreement,
might well be diverting work from unit employees em-
ployed by Respondent to employees of Specialty Trades,
Inc. who are not covered by any collective-bargaining
agreement with the Union. Thus, the record shows suffi-
cient evidence linking possible Respondent contract vio-
lation work diversion to the Union 's 19 May questions
concerning the relationship of the two employers.
C. Respondent's Defenses
Although filing of the grievance is not a condition
precedent to obligating the employer to supply relevant
information , Pence Construction Corp., supra, and al-
though Respondent does not deny the potential rel-
evance of the propounded questions (many of the same
questions propounded and found relevant in Davis Acous-
tical Co., supra), it does defend on the ground that the
Union failed to adequately notify Respondent of the facts
on which the Union sustained its "reasonable basis for
believing" that Respondent was in violation of the col-
lective-bargaining agreement.
Neither logic nor case precedent demonstrates that the
Union, in triggering Respondent 's obligation to supply
information, is required to divulge to the Employer the
information on which it bases its "reasonable basis for
believing .", Although it is true that some cases, e.g.,
Davis Acoustical Co., show that the Union communicated
with the employer the facts of apparent work diversion
which its investigation divulged, there is no such indica-
tion in Pence Construction Corp. In that case, as here, the
factors do not necessarily establish that the employer
was unlawfully diverting work to another entity. The
only necessary condition is that the evidence provided
the Union with a reasonable basis for its belief, expressed
here in a letter to the Respondent, that Respondent was
diverting erstwhile unit work, thereby violating the col-
lective-bargaining agreement . I conclude that the Board,
not Respondent, is the arbiter of whether the Union's
evidence supports the "reasonable belief."
The Board appears to hold, in Pence Construction, that
there must only be a reasonable basis for the union's.con-
clusion, conveyed to respondent, that respondent was
violating the collective-bargaining agreement. The
union's correspondence with the employer, as in the in-
stant case, showed no disclosure of evidence on which
the union based its reasonable belief; rather, as in , the in-
stant case, the communication of the union to the em-
ployer alleged only specific contract violations and
merely alleged , as in the instant case,, the employer's pur-
pose of evading the obligations of collective -bargaining
agreement . To rule otherwise, that the union must supply
evidence, I find, would make respondent , rather than the
Board, the arbiter of whether the union's belief of the ex-
istence of a contract violation had a "reasonable basis,"
BENTLEY-POST ELECTRIC CORP. 569
which is the Board's standard in Pence Construction.
Were there an obligation, as Respondent insists, for the
Union to supply Respondent with initial information, and
thereafter, further information after Respondent's inter-
mediate reply, before the Union could establish a "rea-
sonable basis" for its belief of a contract violation, not
only would Respondent, rather than the Board, become
the arbiter of the Union's reasonable belief, but Respond-
ent would become exclusive goal-keeper in a cat-and-
mouse game : each time the Union would submit evi-
dence to Respondent, Respondent, would decide whether
it was sufficient to initially trigger and, thereafter, to fur-
ther trigger Respondent's obligation to further supply in-
formation. Neithet the Act, nor logic, nor the case law
permit such a dilatory procedure. Moreover, such a pro-
cedure would support continued delay (a) in having the
Union decide whether to file, or, as in the instant case,
proceed to further process, a contract grievance; and (b)
in permitting continued intermediate diversion of unit
work which might ultimately be in violation of the con-
tract and the Act. Fibreboard Corp. v. NLRB, 379 U.S.
203 (1964). Such a procedure would undermine the ex-
press contrary policy of NLRB v. Acme Industrial Co.,
385 U.S. 432, 438-439 (1967): to require the employer to
convey to the union the information necessary to
promptly evaluate the merits of the union's grievance in
order to sift our unmeritorious claims.
In addition, Respondent's formal response of 29 July
1986 to the Union's 19 May 1986 questionnaire interposes
not a denial of the relevancy of the questions, but only
an assertion that the answers are of a "confidential
nature" to the operations of that "separate corporation."
In fact, Respondent's response answers some of the
Union's questions. Respondent's partial answer on the
merits implicitly denotes, in my judgment, an admission
of -both the Union's need to know and the prima facie
relevance of the questions in the questionnaire.
Furthermore, Respondent's naked plea of "confiden-
tiality" itself, absent a denial of relevance, serves to
excite the Union's interest with regard to possible unlaw-
ful diversion rather than to quiet it. In the absence of an
explicit denial of relevance, I separately conclude that
Respondent's partial answer, joined to a defense of "con-
fidentiality," per se is independent supporting evidence
of relevance of the Union's questions even in the absence
of other proof.
I conclude, therefore, that the Union has supplied evi-
dence beyond mere suspicion and surmise, Southern
Nevada Builders Assn., 274 NLRB 350 (1985), and under
Pence Construction has demonstrated sufficient evidence
to support its burden of proof regarding the relevance of
its request for information concerning nonunit employees
and operations, Ohio Power Co., 216 NLRB 987 (1975). It
has proved a reasonable basis for its belief (whether or
not ultimately true) that Respondent was diverting unit
work in violation of the collective-bargaining agreement.
Such proof is further strengthened by (a) Respondent's
partial answer; and (b) Respondent's plea of confidential-
ly. That evidence, 'together with its 19 May 1986 letter
to Respondent alleging a violation of the collective-bar-
gaining agreement and an unlawful evasion thereof, was
sufficient to support the Union's burden of proof demon-
strating that the requested information was relevant and
essential to the performance of the Union's obligations as
the collective-bargaining representative to process its
grievance and to administer the collective agreement. I
am therefore constrained to conclude that Respondent,
by failing to produce the requested information, violated
Section 8(a)(5) and (1) of'the Act as alleged.5 In reach-
ing this conclusion, I necessarily find no merit in Re-
spondent's argument that the material is "confidential"
and therefore need not be produced. I have found no
case threatening an employer's claim of the relationship
between itself and an alleged recipient of unlawful work
diversion as being "confidential." Indeed, as above
noted, I have found the plea of confidentiality to be fur-
ther evidence supporting the Union's reasonable belief of
work diversion. Although the Board, in case of trade se-
crets, has established a protective mechanism, in the face
of a Union's otherwise lawful demand for information
which might cause harmful disclosure, Kelly-Springfield
Tire Co., 266 NLRB 587 (1983), there is no reason to be-
lieve that a procedural device protecting an employer's
trade secrets can relate to an employer allegedly engaged
in unlawfully diverting work. In any event, the facts of
record fail to show prima facie secret material to be pro-
tected.6 Cf. NLRB v. Jaggars-Chiles-Stovall, 639 F.2d
1344 (5th Cir. 1981).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
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 failing or refusing to provide the Union, in writ-
ing, with the information requested in the Union's letter
and questionnaire of 19 May 1986, Respondent has un-
lawfully refused' to bargain with the Union and has en-
gaged in, and is engaging in, unfair labor practices in
violation of Section 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated Section
8(a)(5) and (1) of the Act, it is recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the purposes of the Act.
This affirmative action will include the grant of the re-
quested information and the posting of the usual notice.
s Pence Construction , supra; see also Washington materials x NLRB,
803 F.2d 1333 (4th Cir 1986).
B To the extent Respondent argues (Br 12 ) that the Union should seek
the information from Specialty Trades, Inc ., the issue is whether Re-
spondent is obliged to surrender the information, not Specialty Trades. In
addition, cases such as American Cyanamid Co., 129 NLRB 683 (1960),
cited by Respondent , are distinguishable . Here, the Union is not seeking
Respondent's records-merely answers . In the instant case, Respondent
refused to fully answer the Union's questions.
570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On- these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
e 7
ORDER
The Respondent, Bentley-Jost Electric Corporation,
Milwaukee, Wisconsin, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with International
Brotherhood of Electrical Workers, Local Union No.
494, AFL-CIO by refusing to furnish the Union with the
information, in writing, requested in the Union's letter
and questionnaire of-19 May 1986.
(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) Forthwith furnish the Union with the information
requested in its letter and questionnaire of 19 May 1986.
(b) On request, bargain collectively in good faith with
the Union with regard to wages, hours, and other terms
and conditions of employment of employees in the ap-
propriate unit specified in the collective bargaining
agreement between Respondent and the Union which
agreement runs for the period of 1985 through 1988.
(c) Post at its office and other facilities in Milwaukee,
Wisconsin, copies of the attached notice marked "Ap-
pendix."8 Copies of the notice, on forms provided by the
7 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.
8 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
Regional Director for Region 30, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(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.
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board." -
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
International Brotherhood of Electrical Workers, Local
Union No. 494, AFL-CIO by refusing to furnish the
Union with the information requested in the Union's
letter and questionnaire of 19 May 1985.
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 Union with the information re-
quested in its letter and questionnaire to us of 19 May
1986.
BENTLEY-JOST ELECTRIC CORPORATION