Corson & Gruman Co.

National Labor Relations Board - Board Decisions

Jan 31, 1986

278 N.L.R.B. 329 (N.L.R.B. 1986)

CORSON & GRUMAN COMPANY
Corson and Gruman Company and Metropolitan
D.C. Paving ,- Highway and Construction Mate-
rials Council, AFL-CIO. Case 5-CA-16977
31 January 1986
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 14 August 1985 Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,'
and the General Counsel filed a brief in answer to
the Respondent's exceptions.
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,2 and
conclusions3 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, Corson and
Gruman Company, Washington, D.C., its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
i The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties
2 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 Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The judge incorrectly found that the Respondent sold its Stafford, Vir-
ginia plant to General Paving Corporation. The record indicates that the
Respondent sold its Washington, D.C plant to General Paving, which
subsequently moved the plant to Virginia This error is insufficient to
affect our decision.
2 We agree with the judge, for the reasons set forth by him, that the
Union had a reasonable basis for suspecting that a contract violation had
occurred. We therefore find it unnecessary to pass on his statement im-
plying that "even a slight suspicion" is sufficient to justify a union's re-
quest for information. Further, because the requested information clearly
is relevant to the single employer and alter ego issues raised by the
Union, we find it unnecessary to rely on the judge's additional finding
that the Union was entitled to the information on the basis that it suspect-
ed that the Respondent was subcontracting unit work in violation of the
contract
Orin R. Heend, Esq., for the General Counsel,
John William Mannix, Esq., and Bryan Downey, Esq., of
Washington , D.C., for the Respondent
Jeffrey Freund, Esq., of Washington , D.C., for the Charg-
ing Party.
DECISION
329
STATEMENT OF THE CASE
MARVIN RoTH, Administrative Law Judge. This case
was heard at Washington, D.C., on 6 June 1985.1 The
charge was filed on 1$ January by Metropolitan D.C.
Paving, Highway and Construction Materials Council,
AFL-CIO (Union). The complaint, which issued on 15
March and was amended at the hearing, alleges that
Corson and Gruman Company (Respondent or Compa-
ny) violated Section 8(a)(1) and (5) of the National
Labor Relations Act. The gravamen of the complaint is
that the Company allegedly failed and refused to furnish
the Union with information that was necessary for and
relevant to the Union's functions as the exclusive bar-
gaining representative of the Company's employees in an
appropriate unit. The Company's answer denies the com-
mission of the alleged unfair labor practices. All parties
were afforded full opportunity to participate, to present
relevant evidence, to argue orally, and to file briefs. The
General Counsel and the Company each submitted a
brief.
On the entire record in this case2 and from my obser-
vation of the demeanor of the witnesses, and having con-
sidered the arguments of the parties, I make the follow-
ing '
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Company, a District of Columbia corporation
with an office and place of business in Washington, D.C.,
has been engaged in the business of providing asphalt
paving services in the building and construction industry.
In the operation of its business , the Company annually
purchased goods and materials valued in excess of
$50,000 directly from points located outside the District
of Columbia. By virtue of the Company's location , plena-
ry jurisdiction is also warranted . I find , as the Company
admits, that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is 'a labor organization within the meaning
of Section, 2(5) of the Act.
III. THE BARGAINING UNIT INVOLVED
The Union consists of four labor organizations which
represent employees engaged in work in the building and
construction industry in the greater Washington, D.C.
area; specifically, Operating Engineers Local No. 77, La-
borers Local No. 456, Cement Masons, Local No. 891,
and Teamsters Local No. 639 (collectively the affiliated
locals). The Union, together with the affiliated locals,
functions as collective-bargaining representative of such
employees. Since about 1960 the Union and its affiliated
locals have been parties to a series of collective-bargain-
i All dates herein are for the period from I July 1984 through 30 June
1985 unless otherwise indicated
2 Errors in the transcript have been noted and corrected.
278 NLRB No. 48
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing contracts with the Company. At one time the Com-
pany bargained through a multiemployer association.
However, in recent years the Company has negotiated
individually with the Union. It is undisputed, and I so
find, that all employees of the Company performing
paving work under its agreement with the Union consti-
tute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act,
that at all times material the Union has been and is the
exclusive collective-bargaining representative of the unit
employees, that the Union has been recognized as such
by the Company, and that such recognition has been em-
bodied in successive collective-bargaining contracts, the
most recent of which is effective by its terms until 30
April 1986. The current contract provides in full, under
the heading "Scope of Agreement," as follows:
(A) The terms of this contract shall apply to all
paving projects within the confines of the District
of Columbia, where the grading is incidental to the
paving. The contract shall apply only in the geo-
graphical boundaries of the District of Columbia
and shall not apply on any building projects con-
tracted for by public or private agencies or for sub-
contracts on any of these projects.
(B) On any other construction work which the
Employer may undertake, the current appropriate
contracts which apply on such types of work shall
be applicable in accordance with the class of work
defined in the various contracts, except where
either the unions or contractors foresee a dispute as
to which contract may apply to the job, then a pre-
job conference shall be held to clarify this situation
before the job starts. If a dispute arises after the
onset of the job, the local union involved shall meet
with the contractor and attempt in good faith to
settle the dispute. If the dispute cannot be settled
between the Union and Contractor then a panel of
eight (8) consisting of one (1) each from the four (4)
local unions and four (4) contractor representatives
shall meet within a forty-eight (48) hour time period
to resolve the dispute.
(C) On Federal Government Projects, except on
airports, because of the Federal specifications and
Federal inspection and because of the high quality
of craftsmanship required, all provisions of the D.C.
Paving Agreement shall apply in toto to all of the
area covered by the affiliated local unions of the
Paving Council.
(D) On all paving work around any new build-
ings, cost of which building exceeds $2,000,000.00,
the terms and provisions of the Area Commercial
Building Contract shall apply.
(E) The terms and conditions of this Agreement
shall not apply to transit mix truck drivers in the
employ of the Employer.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Refusal to Furnish Information
The Company historically performed most of its work
in the District of Columbia. In early 1984 the Company
and Union met in negotiations, in which the Company
expressed concern that it needed to be competitive in the
surrounding counties, because the Dirstrict of Columbia
had become a "sheltered market," i.e., one in which most
work was going to minority-owned or operated firms.
The Company is not such a firm. The Union agreed to a
20-percent wage reduction for some work performed
outside of the District, and on 19 March 1984 the parties
executed an addendum agreement which accordingly
modified the existing contract. Nevertheless in Novem-
ber 1984 the Company notified its employees that it
would "terminate all operations on or before November
30, 1984," and would "make every effort to help you
secure employment with other contractors in the area."
In the meantime, in late October , Union President
Charles Stover heard from Business Agent Arthur
Taylor and Shop Steward Bill Toyer that the Company
was going out of business. Stover requested a meeting
with the Company to "discuss the relocation of the
[Company] to the suburbs of Virginia and the impact
upon our members working for the Company." The
Company agreed to meet, and a meeting was held on 9
November at the Union's office. Stover was unable to
attend. The Union was represented by Taylor and an-
other business agent. The Company was represented by
its vice president, Peter Branson, and by Arthur Cox Jr.
The present record is ambiguous as to Cox Jr.'s position
with the Company. The complaint as - amended alleges
and the answer admits that at all times material James T.
Branson was president and Peter T. Branson was vice
president of the Company. However, Stover testified
that Arthur Cox Sr. was president and Arthur Cox Jr.
was vice president of the Company, and that his knowl-
edge was based on many years of association and dealing
with them. The Company's letterhead, at least during the
last 3 months of 1984, identified "A. C. Cox" as presi-
dent and James T. Branson as vice president. The Com-
pany's response to the Board's commerce questionnaire
in this proceeding, which was signed by Cox Jr., identi-
fied Cox Jr. as vice president of CG Enterprises, Inc., a
holding Company of which the Company is a wholly-
owned subsidiary, and the person who was best qualified
to give information concerning the operation of the
Company's business. Cox Jr. acted as Company spokes-
man at the 9 November meeting. Business Agent Taylor,
the only witness present at the meeting to testify con-
cerning that meeting, testified that Cox Jr. told him that
the Company would be shutting down, that it would no
longer do paving work, and that the Company sold its
office building and ' yard to CSX, a real estate develop-
ment firm . Taylor testified that he asked whether the
Company would do work by "General Paving" or
"Prince George's Paving" and that Cox Jr. told him that
the Company sold its plant in Stafford, Virginia, to Gen-
eral Paving. Taylor testified that he then asked about
"Prince George's Contracting Company," whereupon
the two company representatives simply looked at each
other. However, in his investigatory affidavit to the
Board's Regional Office, Taylor stated that he did not
make specific reference to "Prince George's Paving," al-
though he may have expressed an opinion that it would
CORSON & GRUMAN COMPANY 331
be performing some of the Company's work. Taylor ad-
mitted that the Company representatives did not tell him
that the Company would give its work to Prince
George's Paving or General Paving. He testified that he
reported the substance of the meeting to Union President
Stover, adding his personal opinion that the Company
was giving its work to the other firms. I credit Taylor's
testimony concerning the meeting as modified or supple-
mented by his affidavit. (In light of the affidavit, I fmd
that Taylor probably expressed an opinion that "Prince
George's Paving" would be doing some of the Compa-
ny's work, without putting a direct question to the com-
pany representatives, and that they did not respond.)
Consequently I do not credit Stover's testimony that
Taylor reported to him that the company representatives
said they "were going to put their work over with Gen-
eral Paving and Prince George's Contractors."
General Paving Corporation, like the Company, is a
wholly-owned subsidiary of CG Enterprises. General
Paving is based in Manassas, Virgina, performs asphalt
work in the Manassas and Fredericksburg, Virginia
areas, is qualified to perform work only in Virginia, and
has never performed work in the District of Columbia.
The present record fails to establish the existence of any
firm by the name of "Prince George's Paving." Howev-
er, the General Counsel presented in evidence a certifi-
cate issued by the District of Columbia on 22 January
1980, authorizing Prince George's Contractors, Inc., a
Maryland corporation, to engage in construction work,
production, and sale of asphalt and related work in the
District of Columbia. The accompanying application by
Prince George's Contractors indicated that its directors
were Carl Jones, James L. Artis, Arthur C. Cox Sr., and
Arthur C. Cox Jr., and that its officers were: president,
Carl D. Jones; vice president, David L. Eckle; secretary,
Arthur C. Cox Jr.; and treasurer, James L. Artis. The
application indicated that Company Counsel John Wil-
liam Mannix was the registered agent for Prince
George's Contractors. Mannix formerly represented the
employer association in which the Company participated.
However, when the Company withdrew from that asso-
ciation, Mannix no longer participated in association bar-
gaining, but he continued to represent the Company in
its separate negotiations. Union President Stover testified
that Mannix also represented "Jones & Artis," a paving
company (not otherwise identified), in negotiations. Busi-
ness Agent Taylor testified that Carl Jones is black, and
therefore that Prince George's Contractors "could be"
regarded as a minority firm. Neither General Paving
Corporation nor Prince George's Contractors is signato-
ry to a contract with the Union.
By letter dated 20 November, Union President Stover
asserted to Cox Jr. that he said at the 9 November meet-
ing that the Company was going out of business, that all
future company business would be performed by General
Paving Company and Prince George's Paving, and that
there would be no jobs available at General Paving for
any Local 77 operating engineers employed by the Com-
pany. As indicated by the testimony of Taylor, these as-
sertions were true only in that Cox Jr. said that the
Company was going out of business. Stover further as-
serted that the Union has "certain rights" with respect to
the purported closedown of an operation, and "may have
certain rights" with respect to the other two companies.
Stover requested that "accordingly," Cox Jr. provide
him with the following information:
1. The names of all Corson and Gruman owners
who are or will be owners of any portion of Gener-
al Paving and Prince George Paving together with
the percentage of ownership of each such person.
2. Names of all supervisory personnel of Corson
and Gruman who are or will become supervisors at
General Paving and Prince George Paving.
3. All contractors for jobs awarded to Corson
and Gruman that will be performed by General
Paving and Prince George Paving.
4. All equipment owned by Corson and Gruman
which will be owned by General Paving and Prince
George Paving.
5. The names of all officers and/or directors of
Corson and Gruman who will become or are offi-
cers or directors of General Paving and Prince
George Paving.
6. The names of all Corson and Gruman employ-
ees who, in the last three years have worked for
and/or received paychecks from General Paving
and Prince George Paving.
By letter dated 30 November, Company Vice President
Branson responded to Stover's letter. Branson stated that
he assumed that Stover made his request in his capacity
as president of the Union.3 Branson denied Stover's as-
sertions concerning the 9 November meeting, and stated
that the Company had no obligation to provide the re-
quested information concerning the other two compa-
nies. However, he offered to discuss the matter further if
Stover required additional clarification. By letter dated
13 December Stover replied that apart from what was
said at the meeting, "we still believe that there is a suffi-
cient link between Corson & Gruman and General
Paving and Prince George's Paving to justify your pro-
viding us with the information we seek." Stover also re-
quested additional information concerning the Compa-
ny's shutdown.' However, the present complaint alleges
that the Company failed and refused to furnish only the
information initially requested in Stover's letter of 20
November. By letter dated 26 December, Branson reiter-
ated the Company's position that the Union had no basis
for requesting the information concerning the other two
firms, stated that the Company ceased operations on 30
November and offered to "meet with you any time to
address any of your, concerns." Thereafter the Union
filed the present charge.
a Stover signed his correspondence with the Company as president and
business manager of Operating Engineers Local 77 However, in his re-
quest for a meeting, dated 31 October, Stover stated that he was request-
ing the meeting "On behalf of the Paving Council affiliated Local
Unions" I find , as Branson correctly assumed, that Branson made the re-
quest for information on' behalf of the Union, i.e , the Council. Moreover,
the Council and its affiliated locals comprised a single entity in bargain-
ing with, the Company, the contract acknowledged such status, and
Stover as Council president regularly dealt with the Company in such ca-
pacity Therefore Stover's letter constituted a request by the recognized
bargaining representatives.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union officials Stover and Taylor testified in sum that
they believed that the Company was still in business, be-
cause on 7 February 1985, after the purported shutdown,
the District of Columbia Department of Public Works
awarded the Company a repaving contract valued at
over $2 million. The Company was the lowest of three
bidders. The Company submitted its bid in September
1984 (before the announced shutdown), and the Union
obtained a copy of the award from the director of the
Department of Public Works about 1 March. Stover tes-
tified that the District government usually proceeds
slowly in awarding such contracts. The work had evi-
dently not commenced by the time of the present hear-
ing. No evidence was presented which would indicate
whether the Company withdrew its bid or relinquished
or subcontracted the work. However, in arguing in sup-
port of his motion to dismiss the complaint , the Compa-
ny's counsel stated that "the job has been subcontract-
ed."4 Stover and Taylor further testified, in sum, that on
the basis of statements made by company employees, in-
cluding a union steward, and a personal observation by
Stover, they believed that the Company was transferring
work to Prince George's Contractors and General
Paving. Stover testified that in early 1984 Shop Steward
Bill Toyer told him that "they were having to go on
more and more of Prince George's Contractors jobs to
do work, and less and less work for the Corson and
Gruman Company," and "they felt that ultimately they
would be out of a job if this continued." Taylor testified
concerning similar complaints by Toyer and other com-
pany employees during the period from March to No-
vember 1984. Taylor testified that several employees told
him that "Corson & Gruman is getting the work and
Prince George's is doing it." However, none of the em-
ployees referred to a specific job or jobs. Stover testified
that during the spring of 1984, while driving on the Cap-
itol Beltway, he observed a highway resurfacing job (on
the Beltway in Prince George's County), and that he
knew, from reading Dodge Reports, that Prince
George's Contractors was the prime contractor on the
job.5 Stover further testified that he observed both
Prince George's Contractors and company equipment on
the job, and that company employees were operating the
company equipment. Stover admitted that the Company
sometimes performed work pursuant to subcontract, but
that he did not attempt to determine whether the Com-
pany had a subcontract for any of this work. Stover tes-
tified that in October, Steward Toyer told him that the
Company was going out of business, moving its head-
quarters , and relocating its asphalt plant to Manassas
where it would be under General Paving, and that by
reason of this report he requested the 9 November meet-
ing with the Company. Stover further testified that he
4 Company counsel's statement may properly be considered as an ad-
mission by the Company Steve Alin Ford, 179 NLRB 229 fn 2 (1969)
5 The Dodge reports is a commercial publication circulated among and
relied on by contractors, subcontractors, and other persons mterested'in
the building and construction industry, which periodically list contracts
and subcontracts bid and awarded Such report is admissible in evidence
for the truth of the matters contained therein as an exception to the hear-
say rule. Federal Rules of Evidence, Rule 803(17). However, no such re-
ports were offered in evidence in the present case
did not check to find out whether the Company disman
tled or relocated its Stafford plant, but that he did ob-
serve the Company's District of Columbia headquarters
plant being torn down. Stover and Taylor testified in
sum that the Union requested the information described
in Stover's 20 November letter because they believed
there was an alter ego relationship among the Company,
Prince George's Contractors and General Paving, and
that their belief was based on information concerning the
relationships among the three firms, including statements
made at the 9 November meeting and the reports from
Steward Toyer and other employees. Neither the Union
nor any individual employee, or employees filed a con-
tractual grievance concerning alleged loss of work or
other matter pertinent to this case. The contract between
the Company and the Union provides for arbitration
only under the scope of agreement article previously
quoted, and with respect to jurisdictional disputes. The
Company does not take the position that the present case
should be deferred to contractual arbitration. Rather the
Company takes the position (Tr. 145-146) that the com-
plaint should be dismissed because the General Counsel
has failed to demonstrate that the requested information
was or is necessary for or relevant to the Union's func-
tions as bargaining representative of the unit employees.
B. Analysis and Concluding Findings
The Board and courts have held that .ostensibly sepa-
rate firms may be regarded as a single employer under
the Act where there is interrelation of operations, togeth-
er with centralized control of labor relations, common
management, and common ownership or financial con-
trol. NLRB v. M. P. Building Corp., 411 F.2d 567 (5th
Cir. 1969). The alter ego doctrine is an extension of the
concept of single employer. Thus, two nominally sepa-
rate business entities may be regarded as a single employ-
er if one is the alter ego or "disguised continuance" of
the other. Southport Petroleum Co. v. NLRB, 315 U.S.
100, 106 (1942). In determining "whether two facially in-
dependent employers constitute alter egos" under the
Act, the Board has long held that "although each case
must turn on its own facts, we generally have found alter
ego status where the two enterprises have substantially
identical [ownership], management, business purpose, op-
eration , equipment, customers and supervision."Advance
Electric, 268 NLRB 1001, 1002 (1984). However, actual
common ownership is not an essential element of an alter
ego relationship. All Kind Quilting, 266 NLRB 1186 fn. 4
(1983). Nor is nominal, as distinguished from real
common management and supervision. American Pacific
Concrete Pipe Co., 262 NLRB 1223, 1226 (1982), enfd.
mem. 709 F.2d 1514 (9th Cir. 1983). Rather, "the crucial
element in a decision to apply the alter ego doctrine is a
finding that the older company continued to maintain a
substantial degree of control over the business claimed to
have been sold to the new entity." NLRB v. Scott Print-
ing Corp., 612 F.2d 783, 786 (3d Cir. 1979).6 In Walter N.
6 In Advance Electric, the Board also held that in determining whether
an alter ego status was present, it would consider "whether the purpose
behind the creation of the alleged alter ego was legitimate or whether,
Continued
CORSON & GRUMAN COMPANY 333
Yoder & Sons, 270 NLRB 652 fn. 2 (1984), the Board re-
cently held:
A "double breasted" operation is one in which a
contractor operates two companies, one unionized
and the other nonunionized. Depending on how the
companies are structured and operated, each may
be a separate corporation or else both may be so
interrelated that they constitute a single employer
or one may be the alter ego of the other. A collec-
tive-bargaining contract signed by one of the com-
panies would not bind the other if each were a sep-
arate corporation, but would bind the other if both
constituted a single employer and the employees of
both companies constituted a single appropriate bar-
gaining unit or the nonsignatory company is an alter
ego of the signatory company.
Yoder, like the present case, involved alleged violations
of Section 8(a)(5) and (1) of the Act based on the signa-
tory employer's refusal to furnish information to the bar
gaining representative. In Yoder, and in the companion
case of Ray C. Lapp Air Conditioning, 270 NLRB 641
(1984), the Board held that the signatory employer so
violated the Act. The information requested by the
Union in the present case is plainly relevant to a question
of single employer or alter ego status.? Indeed the kind
of information requested in the present case is substan-
tially similar to that requested in Yoder and Lapp. In
NLRB v. Leonard B. Hebert, Jr. & Co., 696 F.2d 1120,
1124-1125 (5th Cir. 1983), cert. denied 104 S.Ct. 76
(1983), affg. 259 NLRB 881 (1981), the court spelled out
the standard to such information, citing in part as author-
ity, NLRB v. Associated General Contractors of California,
633 F.2d 766 (9th Cir. 1980), cert. denied 452 U.S. 915
(1981). The court in Hebert held:
As Associated General Contractors explains, the
key inquiry is whether the information sought by
the Union is relevant to its duties. 633 F.2d at 770.
The Supreme Court has adopted a liberal, discov-
ery-type standard by which relevancy of requested
information is to be judged. Id.; Acme Indutrial Co.,
385 U.S. at 438 & n. 6, 87 S.Ct. at 568-69 & n. 6.
Information intrinsic to the employer-union relation-
ship, such as that pertaining to wages and other fi-
nancial benefits, is considered presumptively rele-
vant, with the employer having the burden of
showing irrelevance. Associated General Contractors,
633 F.2d at 700. n. 4a. Where, however, a union
seeks information not ordinarily pertinent to its per-
formance as bargaining representative, but alleged
to have become relevant due to particular circum-
stances, no presumption exists and the union has the
instead, its purpose was to evade reponsibilities under the Act," but that
such intent is not an essential element of an alter ego relationship.
' The General Counsel contends (Br 20-21) that the requested infor-
mation is also relevant because the Company subcontracted out unit
work, thereby entirely eliminating the unit work, and the Union has a
statutory duty to discuss the subcontracting issue with the Company be-
cause it has a duty to preserve, protect, and promote employment oppor-
tunities within the unit. This aspect of the case will be further discussed,
infra.
initial burden of establishing relevancy before the
employer must comply. San Diego Newspaper Guild
v. NLRB, 548 F . 2d 863 , 867 (9th Cir. 1977). Infor-
mation of the type sought by the Union in this case
does not appear to be presumptively relevant, see
Associated General Contracts , 633 F.2d at 770, and
thus the union here has the initial burden of show-
ing relevancy.
We hold that the Union has met that burden
.. . . As noted earlier, a disclosure request is exam-
ined under a liberal , discovery-type standard. The
Union need only be "acting upon the probability
that the desired information [is] relevant, and that it
would be of use to the union in carrying out its stat-
utory duties and responsibilities . This discovery-
type standard decide [s] nothing about the merits of
the union's contractual claims." Acme Industrial Co.,
385 U.S. at 437 , 87 S.Ct. at 568 (footnote omitted).
"It is sufficient that the information sought is rele-
vant to possible violations where the union has es-
tablished a reasonable basis to suspect such [con-
tract] violations have occurred . Actual violations
need not be established in order to show relevan-
cy." Associated General Contractors, 633 F.2d at 771.
The Board's decision in Yoder and Lapp contain the
following footnote discussion by the Board panel mem-
bers concerning the applicable standard:
In affirming ' the judge's decision, Chairman
Dotson and Member Dennis do not rely on any im-
plication in Associated General Contractors of Califor-
nia, 242 NLRB 891, 893 (1979), enfd. as modified
633 F.2d 766 (9th Cir. 1980), cert. denied 452 U.S.
915 (1981 ); and Leonard B. Hebert, Jr., & Co., 259
NLRB 881, 886 (1981 ), enfd . 696 F .2d 1120 (5th
Cir. 1983), cert. denied 114 LRRM 2567, 104 S.Ct.
76 (1983), that the information the Union sought in
this case would be presumptively relevant because
it enables the Union to evaluate whether [the non-
signatory's] operations are so interrelated with the
Respondent 's operations that [the nonsignatory's]
employees should be included in the same bargain-
ing unit . Instead, they find that a union must dem-
onstrate reasonable or probable relevance whenever
the requested information ostensibly relates to em-
ployees outside the represented bargaining unit even
though the information may show ultimately that
the employees are part of the bargaining unit be-
cause of the existence of a single employer or an
alter ego relationship.
Member Zimmerman does not find that Associat-
ed General Contractors of California, ,and Leonard B.
Hebert, Jr., imply that the information sought here
is presumptively relevant without the Union first
having to demonstrate its relevance . To the con-
trary, both cases make clear that a union must es-
tablish a good-faith belief that employees may have
been excluded improperly from the bargaining unit
in order to demonstrate the "reasonable or probable
relevance" of the information requested . See Leon-
ardB. Hebert, Jr. at 884-886.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Unfortunately, in contrast to the court decision in
Hebert, the footnote discussion in Yoder and Lapp uses
the terms "reasonable and probable relevance" and
"good-faith belief" without defining or elaborating on
the meaning of those terms. Section 10(1) of the Act,
which provides for temporary injunctive relief in certain
types of unfair labor practice cases, states that the
Board's regional officer shall petition for injuctive relief
in such cases whenever he has "reasonable cause to be-
lieve that [the] charge is true and that a complaint should
issue." "Reasonable cause" has been defined as meaning,
that with respect to the facts of a particular case, "there
is reasonable cause to believe that the elements of an
unfair labor practice are present," 'Schauffler v. Long-
shoremen Local 1291 (Northern Metal), 292 F.2d 182,
187-188 (3d Cir. 1961). However, it is evident from an
analysis of the Board decisions dealing with requests for
information, including not only the Board's discussion of
the applicable principles, but the facts presented and the
Board's deposition of those cases in light of the facts, that
far less is required of the requesting union than would be
required of the petitioner in a Section 10(1) injunction
proceeding. Indeed in Hebert the court held that the
Union need only establish a reasonable basis "to suspect"
that contract violations have occurred, although suspi-
cion alone would not constitute reasonable cause under
the Section 10(1) reasonable cause standard. Moreover,
as the applicable standard is a "discovery-type standard"
the Union's basis for its request may consist in part or
even entirely on hearsay or inaccurate information, and
the Board has expressly and impliedly so held.8 See
Leonard B. Hebert Jr. & Co., 259 NLRB 881, 885 (1981)
(the Board's decision in the Hebert case); Boyers Con-
struction Co., 267 NLRB 227 (1983); National Cleaning
Co., 265 NLRB t352 (1982), enfd. 723 F.2d 746 (9th Cir.
1984). Thus in National Cleaning the basis for the union's
request consisted entirely of complaints received from
union members. Each of these cases further makes clear
that in the unfair labor practice proceeding, the union's
basis may itself be demonstrated by hearsay testimony,
e.g., by the testimony ofa union representative concern-
ing what the representative was told by union members
or other employees. See also Yoder, supra, 270 ' NLRB
652 fn. 6.9 Moreover, as the, requesting union need only
have a reasonable basis for suspecting that a contract
violation has occurred, it is not necessary that the
Union's information be consistent only with a violation,
e.g., that the evidence demonstrate no alternative other
than a single employer or alter ego relationship. Thus in
Doubarn Sheet Metal,' 243 NLRB 821, 823 (1979), the re-
questing union's information was susceptible of more
than one interpretation, i.e,, of a single employer rela-
tionship or a subcontracting relationship. These cases
also make clear that the requesting union need not
inform the signatory employer of the factual basis for its
8 Rule 26(b) of the Federal Rules of Civil Procedure provides that "It
is not ground for objection that the information sought will be madmissi-
ble at the trial if the information sought appears reasonably calculated to
lead to the discovery, of admissible evidence "
8 Therefore the Company's posthearing motion to strike such testimo-
ny (Br. 8, 11) which is, a restatement of the Company's position at the
hearing, is denied.
1
requests, but need only indicate the reason for its re-
quest. Thus in Bohemia, Inc., 272 NLRB 1128 (1984),
relied on by the Company (Br. 15-17), in which the
Board (Member Dennis dissenting) dismissed the com-
plaint, the signatory union made a broad request for in-
formation, notwithstanding that as found by the Board
majority, the basis for the Union's request consisted en-
tirely of speculation -rather than specific complaints by
unit employees, and notwithstanding that the union failed
to specify why it regarded the information as relevant to
its role as bargaining, representative. 10 These principles
are wholly consistent with the collective-bargaining rela-
tionship. If the bargaining representative has even a
slight, suspicion that the signatory employer might be
violating a contractual or other obligation, then it should
be encouraged to address its concerns directly to the em-
ployer, including such requests for information as are
deemed necessary for the Union to take an informed po-
sition in the matter. Likewise it is consistent with the
statutory concept of collective-bargaining that the em-
ployer should provide such information, rather than
place the Union in a position where it must snoop
around from one jobsite to another in an effort to obtain
bits and pieces of the information which the employer
has in its possession. See, e.g., NLRB v. National Clean-
ing Co., 723 F.2d 746, 748 (9th Cir. 1984). "The-Union
had reason to suspect that the employer was attempting
to circumvent the collective-bargaining contract by se-
cretly cutting wages and diverting work to other, possi-
bly related firms. Without further data, however, it could
not act on those suspicions." (Emphasis added.)
Applying the principles set forth-above and their appli-
cation in the cited Board and court decisions, to the facts
of the present case, I find that the General Counsel has
demonstrated that the Union had a reasonable basis for
suspecting that the Company was violating its collective-
bargaining obligations. Therefore the Union was entitled
to the requested information, and the Company has been
and is violating Section 8(a)(5) and (1) of the Act by fail-
ing and refusing to furnish such information. Although
the Company is based in the District of Columbia, has
historically performed most of its work there, and the
ambiguously worded scope of agreement clause of the
collective-bargaining contract is at least susceptible to an
interpretation that the contract covers work in the Dis-
trict (either exclusively or with limited exceptions), the
evidence adduced in this proceeding demonstrates that
the parties understood that their contract covered paving
work outside of the District. Thus in their 1984 negotia-
tions the Company indicated to the Union that it antici-
pated shifting its operations to the outlying areas, and the
parties negotiated an addendum governing wages on
paving projects outside of the District. The Company
also took the position that it was increasingly unable to
obtain work in the District because it did not have the
status of a minority business. However, the Union knew
that Prince George's Contractors enjoyed the status of a
mmiority enterprise, that Arthur Cox Sr. and Arthur
io In Bohemia, the Board majority cited with approval both National
Cleaning Co. and Doubarn, discussed above
CORSON & GRUMAN COMPANY 335
Cox Jr., whatever their corporate titles, were dominant
figures in the Company's operations, that evidently Cox
Sr. was an officer and Cox Sr. and Cox Jr. directors of
Prince George's Contractors (together comprising one-
half of the board of directors), and that Attorney
Mannix, who represented the Company and "Jones &
Artis," was the registered agent for Prince George's
Contractors. l i As for General Paving, the Union learned
through the present unfair labor practice proceeding that
both General Paving and the Company are wholly-
owned subsidiaries of CG Enterprises, a holding compa-
ny, and that Cox Jr. was and is vice president of CG En-
terprises. i a In light of the status of the Company and
General Paving as wholly-owned subsidiaries of CG En-
terprises, and the common thread of control, in the
person of Cox Sr. and Cox Jr., which runs through CG
Enterprises, the Company, General Paving, and Prince
George's Contractors, .the Union had a reasonable basis
for at least suspecting that the Company, General Paving
and Prince George's Contractors were commonly
owned, managed, and/or controlled. The Union also
could reasonably believe that Cox Sr. and Cox Jr. had
strong motivation to shift District work to Prince
George's Contractors, because of its status as a minority
business, and to shift the Company's Maryland and Vir-
ginia business to Prince George's Contractors and Gen-
eral Paving respectively, because as nonsignatory firms
they could better compete in a nonunion market. Most
important, the Union received information which would
indicate that this was in fact happening. Thus the Union
received complaints from its steward and unit employees
that the Company was transferring work to Prince
George's Contractors, and that the employees were in-
creasingly performing more work for that firm and less
for the Company. Cox Jr. directly informed the Union
that the Company sold its Stafford, Virginia plant to
General Paving. In light of these reports, the Union had
a reasonable basis for at least suspecting that the three
Companies shared a common business purpose, oper-
II The Union in its correspondence and meeting with the Company,
referred to "Prince George's Paving " However, the Company has never
questioned the Union's request because of this misnomer . It is evident
that both the Company and the Union understood that the Union was
referring to Prince George's Contractors The Union's information con-
cerning Prince George's, Contractors was based on an application for au-
thority to do business w^iich was filed in 1980. However, a state of affairs
which has once been demonstrated to exist, is presumed to continue,
absent evidence which would indicate that such state of affairs has ceased
or would likely have ceased The Union was never informed that Cox
Sr, Cox Jr., or Attorney Mannix terminated their connection with Prince
George's Contractors Therefore the Union could reasonably believe that
the application reflected their continuing association with Prince
George's Contractors
Iz The Union's information is based on the Company's answers to the
Board commerce questionnaire, and the testimony of Cox Jr, who was
presented as a company witness The Union's request for information is a
continuing request Therefore the Union may rely on information which
it obtained subsequent to its initial request As I indicated at the hearing,
the General Counsel cannot use the present proceeding as a means of ob-
taining the information which the Union now seeks, i e, the General
Counsel could not cross-examine Cox Jr concerning the entire relation-
ships'among the Company, General Paving, and Prince George's Con-
tractors However, the Company voluntarily presented the testimony of
Cox Jr, and that testimony, together with other statements made by the
Company and its counsel in this proceeding, may properly be considered
as evidence with respect to the merits of this case.
ation,,-equipment, and customers, and in sum, that they
constituted a single employer or alter egos under the
Act. Therefore the union was entitled to the requested
information. 13 I also agree with the General Counsel's
contention that even if the three operating firms were
undisputedly not a single employer or alter egos, the
Union was still entitled to the requested information be-
cause it had a reasonable basis for at least suspecting that
the Company was subcontracting out unit work. From a
prospective point of view, that would not be true if the
Company were undisputedly out of business. However,
the Union had a reasonable basis for at least suspecting
that the Company was still, in business. The Company
was awarded a large contract by the District of Colum-
bia government long after it purportedly went out of
business, and company counsel asserted in this proceed-
ing that the Company subcontracted the work, without
identifying the subcontractor. As -indicated, Prince
George's Contractors is qualified to perform such work.
If the Company were no longer in business , it could nei-
ther accept the award nor subcontract the work. There-
fore for this additional reason the Union was entitled to
the requested information; in particular, items 3, 4, and 6
of the request. See Doubarn Sheet Metal, supra, 243
NLRB at 823; Ohio Power Co., 216 NLRB 987, 992
(1975), enfd. 531 F.2d 1381 (6th Cir. 1976).
CONCLUSIONS OF LAW
1. The Company 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. All employees of the Company performing paving
work under its collective-bargaining contract with the
Union, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act.
4. At all times material the Union has been, and is, the
exclusive representative of all of the employees in the
unit described above.
5. By failing and refusing to furnish the Union with re-
quested information which is relevant and necessary to
the Union's performance of its function as collective-bar-
gaining representative, the Company has engaged, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
6. 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 the Company has committed viola-
tions of Section 8(a)(5) and (1) of the Act, I shall recom-
mend that it be required to cease and desist therefrom
and from like or related conduct, and take certain affirm-
ative action designed to effectuate the policies of the
13 In light of Cox Jr's positions with CG Enterprises, the Company,
and Prince George's Contractors, he plainly was able to furnish the re-
quested information The Company never contended that it was unable to
furnish that information
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act. I shall recommend that the` Company be ordered to
promptly furnish the Union with the information request-
ed in its letter of 20 November 1984, to post an appropri-
ate notice at its place of business, if it still has a place of
business, and to mail copies of such notice to the Union
and to each unit employee who was on its payroll in No-
vember 1984.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed14
ORDER
The Respondent, Corson and Gruman Company,
Washington, D.C., its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing or refusing to bargain collectively with
Metropolitan D.C. Paving, Highway and Construction
Materials Council, AFL-CIO, as the exclusive collec-
tive-bargaining representative of all employees of the
Company performing paving work under their collec-
tive-bargaining contract, by failing or refusing to furnish
said Union with information which is relevant and neces-
sary to its function as such representative.
(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) Promptly furnish the Union with the following in-
formation:
1. The names of all Corson and Gruman Compa-
ny owners who have become, are, or will be
owners of any portion of General Paving Corpora-
tion and Prince George's Contractors, Inc. together
with the percentage of ownership of each such
person.
2. Names of all supervisory personnel of Corson
and Gruman Company who are, have become, or
will become supervisors at General Paving Corpo-
ration and Prince George's Contractos, Inc.
3. All contracts for jobs awarded to Corson and
Gruman Company that have been or will be per-
formed by General Paving Corporation and Prince
George's Contractors, Inc.
4. All equipment owned by Corson and Grurnan
Company which has been transferred to or will be
owned by General Paving Corporation and Prince
George's Contractors, Inc.
5. The names of all officers and/or directors of
Corson and Gruman Company who have become
or will become or are officers or directors of Gen-
eral Paving Corporation and Prince George's Con-
tractors.
6. The names of all Corson and Gruman Compa-
ny employees who, since 20 November 1981, have
14 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.
worked for and/or received paychecks from Gener-
al Paving Corporation and Prince George's Con-
tractors, Inc.
(b) Post at its place of business, if any, copies of the
attached notice marked "Appendix." 15 Copies of the
notice, on forms provided by the Regional Director for
Region 5, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Mail copies of the aforesaid notice, postage pre-
paid, to the Union and to each bargaining unit employee
who was on Respondent's payroll in November 1984.
(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.
is 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."
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 fail or refuse to bargain collectively
with Metropolitan D.C. Paving, Highway and Construc-
tion Materials Council, AFL-CIO, as the exclusive col-
lective-bargaining representative of all our employees
performing paving work under our collective-bargaining
contract with said Union, by failing or refusing to furnish
said Union with information which is relevant and neces-
sary to its function as such representative.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL promptly furnish said Union with the fol-
lowing information:
1. The names of all Corson and Gruman Compa-
ny owners who have become, are, or will be
owners of any portion of General Paving Corpora-
tion and Prince George's Contractors, Inc., together
with the percentage of ownership of each such
person.
2. Names of all supervisory personnel of Corson
and Gruman Company who are, have become, or
CORSON & GRUMAN COMPANY
will become supervisors at General Paving Corpo-
ration and Prince George's Contractors, Inc.
3. All contracts for jobs awarded to Corson and
Gruman Company that have been or will be per-
formed by General Paving Corporation and Prince
George 's Contractors, Inc.
4. All equipment owned by Corson and Gruman
Company which has been transferred to or will be
owned by General Paving Corporation and Prince
George's Contractors, Inc.
5. The names of all officers and/or directors of
Corson and Gruman Company who have become
337
or-will=become or are officers or directors of Gen-
eral Paving Corporation and Prince George's Con-
tractors.
6. The names of all Corson and Gruman Compa-
ny employees who, since 20 November 1981, have
worked for and/or received paychecks from Gener-
al Paving Corporation and Prince George's Con-
tractors, Inc.
CORSON AND GRUMAN COMPANY