Boden Store Fixtures

National Labor Relations Board - Board Decisions

Jul 30, 2004

342 N.L.R.B. 699 (N.L.R.B. 2004)

BODEN STORE FIXTURES, INC.
342 NLRB No. 68
699
Boden Store Fixtures, Inc. and Pacific Northwest Re-
gional Council of Carpenters affiliated with
United Brotherhood of Carpenters & Joiners of
America. Case 36–CA–9451–1
July 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND MEISBURG
On April 28, 2004, Administrative Law Judge Gerald
A. Wacknov issued the attached decision. The Respon-
dent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
adopt the judge’s rulings, findings, conclusions, and rec-
ommended Order.
We agree with the judge that the Respondent violated
Section 8(a)(5) and (1) by refusing the Union’s request
for information relating to an August 13, 2002 grievance
filed by the Union, even though the Union was not a
named party to the national agreement between the Re-
spondent and the United Brotherhood of Carpenters &
Joiners of America (Carpenters).1 In addition to the rea-
sons given by the judge, we rely on the following cir-
cumstances.
The Respondent’s national agreement with the Carpen-
ters expressly obligated the Respondent to comply with
the terms of certain local agreements where it did busi-
ness. This included the Union’s local agreement with an
Oregon contractors’ association. That local agreement
contained a detailed grievance procedure, which ex-
pressly authorized the Union to process grievances “aris-
ing out of a violation, misunderstanding or difference in
interpretation of [the local agreement].”2 By agreeing to
comply with this grievance procedure, the Respondent
accepted the Carpenters’ effective delegation of authority
to the Union to enforce the local agreement. And, in-
deed, while the Union’s grievance was nominally filed
under the national agreement, the substance of the griev-
ance made clear that it was based on the Respondent’s
alleged failure to comply with the terms of the local

1 The Respondent does not contest the relevancy of the requested in-
formation or the Union’s need for it.
2 The Respondent’s vice president of human resources admitted on
cross-examination that this grievance procedure was in effect when the
Union filed its August 13 grievance.
agreement.3 Accordingly, the Respondent was obliged to
provide the Union with requested information that was
relevant and necessary to the Union’s investigation and
processing of the grievance. Cf. Advanced Construction
Services, 330 NLRB 365 fn. 2 (1999), enfd. 247 F.3d
807 (8th Cir. 2001); see also Postal Service, 310 NLRB
701 fn. 3 (1993).
ORDER
The Respondent, Boden Store Fixtures, Inc., Portland,
Oregon, its officers, agents, successors, and assigns, shall
take the action set forth in the judge’s Order.

Adam D. Morrison, Esq., for the General Counsel.
Richard Van Cleve, Esq. (Barran & Liebman LLP), of Portland,
Oregon, for the Respondent.
Harlan Bernstein, Esq. (Jolles & Bernstein), of Portland, Ore-
gon, for the Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice a hearing in this matter was held before me in Port-
land, Oregon, on March 23, 2004. The charge was filed by
Pacific Northwest Regional Council of Carpenters affiliated
with United Brotherhood of Carpenters and Joiners of America
(Union), on September 29, 2003. On December 30, 2003, the
Regional Director for Region 19 of the National Labor Rela-
tions Board (Board) issued a complaint and notice of hearing
alleging violations by Boden Store Fixtures, Inc. (Respondent)
of Section 8(a)(1) and (5) of the National Labor Relations Act,
as amended (Act). The Respondent, in its answer to the com-
plaint, duly filed, denies that it has violated the Act as alleged.
The parties were afforded a full opportunity to be heard, to
call, examine, and cross-examine witnesses, and to introduce
relevant evidence. At the close of the hearing the General
Counsel and counsel for the Union argued the matter orally on
the record, and since the close of the hearing a brief has been
received from counsel for the Respondent. Upon the entire
record, and based upon my observation of the witnesses and
consideration of the oral arguments and brief submitted, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is an Oregon corporation with its office and
place of business located in Portland, Oregon, where it is en-
gaged in the business of designing, fabricating, and installing
custom and proprietary display fixtures. In the course and con-
duct of its business operations, the Respondent purchases and
causes to be delivered to its facility within the State of Oregon
goods and materials valued in excess of $50,000 directly from
sources outside said State. It is admitted and I find that the Re-

3 The local agreement contained specific language restricting the Re-
spondent’s ability to contract out bargaining unit work, which was the
subject of the Union’s grievance.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 700
spondent is and at all material times has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that at all material times the Union
has been a labor organization within the meaning of Section
2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issue in this proceeding is whether the Re-
spondent has violated and is violating Section 8(a)(1) and (5) of
the Act by refusing to furnish requested information to the Un-
ion.
B. Facts
The Respondent is an employer engaged in the building and
construction industry. Since August 1985, the Respondent has
been a party to an agreement with the United Brotherhood of
Carpenters and Joiners of America (UBCJA), also called the
national agreement, providing, inter alia, that:

The Company agrees to recognize the jurisdictional claims of
the UBCJA and to comply with the contractual wages, fringe
benefits, hours and other working conditions established be-
tween the UBCJA affiliates and the employers or recognized
employers agencies in the localities in which the Company
does any work within the jurisdiction of the UBCJA.

. . . .

The Company shall not subcontract any work within the ju-
risdiction of the UBCJA which is to be performed for the job-
site except to a contractor who holds an applicable agreement
with the UBCJA or its relevant affiliate or who agrees in writ-
ing, prior to or at the time of the execution of his subcontract,
to be bound by the terms of this Agreement.

. . . .

There shall be no strike or lockout pending any dispute being
investigated and all peaceable means taken to bring about a
settlement.

Since June 1, 1983, the Union, an affiliate of the UBCJA,
was also signatory to an 8(f) prehire agreement with the Re-
spondent, and represented the Respondent’s employees who
performed installation and related work at the jobsite. The Re-
spondent cancelled or repudiated this agreement in about June,
2002, and thereafter the aforementioned UBCJA agreement
governed the relationship between the parties at least until Au-
gust 25, 2003.1

1 The Respondent maintains it terminated this agreement in writing
by notifying the UBCJA but did not also notify the Union; the Union
claims it has no knowledge of the notification to the UBCJA. The Re-
spondent did not introduce into evidence a copy of the notification.
Even if the UBCJA national agreement is no longer in effect, the griev-
ance was initiated and the request for information was made during the
term of that contract; therefore the requested information must be fur-
nished. See Jervis W. Webb Co., supra, at page 318.
Union Business Representative Bill Walden, a field repre-
sentative for the Pacific Northwest Regional Council of Car-
penters, testified that in June 2002 he began receiving com-
plaints from unit employees that the Respondent was laying
them off and was hiring temp agency employees to perform
their work at the jobsites. As a result, on August 13, 2002, the
Union wrote the Respondent that it was grieving the failure of
the Respondent to comply with the terms of the UBCJA agree-
ment wherein the Respondent was required to comply with the
terms and conditions of employment contained in local agree-
ments. The letter goes on to state:
The remedy sought is for the employer to cease and desist
from any and all failures to comply with the terms and condi-
tions of the [UBCJA] “Agreement” and to make any and all
affected individuals and entities whole for any losses sustained
as a result of the employer’s breach, including, but not limited
to, wages and fringe benefits.
By letter dated July 9, 2003, the Union’s attorney, confirm-
ing a June 2003 telephone conversation with Respondent’s
attorney, requested that the Respondent furnish information
necessary for the Union to investigate and resolve the afore-
mentioned grievance “for the period from July 14, 2002 to the
present.” The letter requests seven categories of information, as
follows:

1. A list of each occasion on which the company sub-
contracted work.
2. The basis and/or reasons why the employer did not
assign the work to bargaining unit personnel.
3. The name of each contractor hired by the employer
to perform such work.
4. A copy of all contracts between the employer and
said contractors.
5. The amount of dollars paid for each project, includ-
ing wage rates paid to employees.
6. A list of any and all interaction with any temporary
employment services or agencies, including a copy of any
such agreements.
7. A list of any wage package paid to any such tempo-
rary agency (including the amount paid to employees), in-
cluding documentation regarding the work performed by
such agencies, listing:

(a) the workers who performed the work,
(b) the dates such work was performed,
(c) the nature of such work,
(d) the reason the work was not assigned to the bar-
gaining unit,
(e) the duration of each job.

The Respondent’s attorney replied by letter dated July 22,
2003, stating that the Respondent never subcontracted any
work, but “did augment its work force on certain projects with
individuals hired from temporary employment agencies,” who
performed “non-bargaining unit work.” Other than this re-
sponse, the Respondent has refused to furnish the requested
information.
BODEN STORE FIXTURES, INC. 701
C. Analysis and Conclusions
On August 13, 2002, the Union notified the Respondent that
it was grieving the Respondent’s alleged failure to comply with
its obligations under the terms of the UBCJA national agree-
ment. About a year later the Union requested information con-
cerning this matter “for the period from July 14, 2002 to the
present.” At the time the Union requested this information the
UBCJA national agreement was in effect.
There is no contention that the requested information is not
relevant to the Respondent’s compliance with the contract. Nor
is there any contention that the requested information is un-
available or that its production would be burdensome to the
Respondent.
The Respondent, in its brief, maintains that the Union has no
standing to bring this case or to request information under the
UBCJA agreement as the Union has never been a party to that
agreement. The Respondent cites no authority in support of the
argument.
The UBCJA requires the Respondent “to comply with the
contractual wages, fringe benefits, hours and other working
conditions established between the UBCJA affiliates and the
employers . . . . in the localities in which the Company does any
work within the jurisdiction of the UBCJA.” It would appear
that under the circumstances, the Union, an affiliate of the
UBCJA, has the same rights and interests as the UBCJA to
request information regarding contract compliance, as the inter-
ests of the UBCJA and its affiliates in representing the same
unit employees are identical. Further, in Jervis B. Webb Co.,
302 NLRB 316 (1991), the employer was signatory to the
“1970 Standard International Agreement” with the UBCJA, but
the Board charge, alleging a failure to furnish information, was
brought by Local 1827, an affiliate of the UBCJA. There the
Standard International Agreement “incorporated by reference
the terms and conditions of the local union agreements when a
signatory employer was performing carpentry work within the
respective territorial jurisdictions of the local unions.” Under
such circumstances, the Board stated, at page 318, “Thus, the
contractual relationship between the Respondent and the [local]
Union was defined by both the Standard International Agree-
ment and the applicable local union agreement.” Accordingly,
the UBCJA agreement establishes a contractual relationship
between the Union and the Respondent. I find no merit to the
contention of the Respondent that the Union has no standing to
file the instant charge or pursue this matter.
The Respondent also argues that since the Union filed what
it characterized as a “grievance,” and there is no specific griev-
ance or arbitration machinery in the UBCJA national agree-
ment, therefore the requested information can not be pertinent
to any outstanding issues between the parties and need not be
furnished. The Respondent cites no authority in support of this
argument.
As noted, it is undisputed that the information requested is
relevant. As the Board has stated in Safeway Stores, 236 NLRB
1126 fn. 1 (1978),2 “[B]efore a union is put to the effort of arbi-
trating even the question of arbitrability, it has a statutory right
to potentially relevant information necessary to allow it to de-

2 Enfd. 622 F.2d 425 (1980), cert. denied 450 U.S. 913 (1981).
cide if the underlying grievances have merit and whether they
should be pursued at all.” The Union has the right to request
information from an employer in order to police the contract
and insure compliance. It is only after obtaining such informa-
tion that the Union is in the position of having to decide what to
do next with the information it has obtained. Further, assuming
arguendo that there may be no arbitrability requirement, the
Union may have other options available to it to obtain compli-
ance with the contract. Accordingly, I find this argument of the
Respondent to be without merit.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(5) and (1) of the
Act as set forth herein.
THE REMEDY
Having found that the Respondent has violated and is violat-
ing Section 8(a)(5) and (1) of the Act I recommend that it be
required to cease and desist therefrom and from in any other
like or related manner interfering with, restraining, or coercing
its employees in the exercise of their rights under Section 7 of
the Act. I shall also recommend the posting of an appropriate
notice, attached hereto as “Appendix.”3
ORDER
The Respondent, Boden Store Fixtures, Inc., Portland, Ore-
gon, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to provide the Union with the infor-
mation requested in the Union’s July 9, 2003 written request for
information.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the purposes of the Act:
(a) Within 21 days after receipt of this decision furnish the
Union with the information requested by it in its July 9, 2003
request for information.
(b) Within 14 days after service by the Region, post at its fa-
cility copies of the attached notice marked “Appendix.”4 Copies
of the notice, on forms provided by the Regional Director for
Region 19, after being duly signed by Respondent’s representa-
tive, shall be posted immediately upon receipt thereof, and shall
remain posted by Respondent for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where notices to

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board a
4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 702
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(c) Within 21 days after service by the Regional Office, file
with the Regional Director for Region 19 a sworn certification
of a responsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to comply.
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
Federal labor law and has ordered us to post and obey this no-
tice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT refuse to give requested information to Pacific
Northwest Regional Council of Carpenters Affiliated United
Brotherhood of Carpenters & Joiners o America.
WE WILL promptly furnish the requested information to the
Union.
WE WILL NOT in any like or related manner interfere with, re-
strain, r coerce employees in the exercise of the foregoing
rights guaranteed under Section 7 of the Act.
BODEN STORE FIXTURES, INC.