Crittenden Construction Co., Inc.

National Labor Relations Board - Board Decisions

Jun 8, 1990

298 N.L.R.B. 747 (N.L.R.B. 1990)

CRITTENDEN CONSTRUCTION CO.
Crittenden Construction Company, Inc. and Operat-
ing Engineers Local 324, International Union of
Operating Engineers, AFL-CIO. Case 7-CA-
29267
June 8, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On December 27, 1989, Administrative Law
Judge Marvin Roth issued the attached decision.
The Respondent filed exceptions and a supporting
brief and the Charging Party filed an 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
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions as modified, and to adopt the recom-
mended Order.
We find, as did the judge, that the Respondent
violated Section 8(a)(5) and (1) of the Act by fail-
ing and refusing to furnish the information request-
ed by the Union in its letter of November 18, 1988.
The Union's request was made at a time when both
the Upper Peninsula and Lower Peninsula collec-
tive-bargaining agreements, to which the Respond-
ent had bound itself by execution of a short-form
agreement, were in full force and effect. The
Lower Peninsula master agreement was effective
from May 1, 1986, to April 30, 1989, and the
Upper Peninsula agreement was effective from
May 15, 1987, to April 30, 1990.1
Whether one or both of those master agree-
ments, which we find to be governed by Section
8(f) of the Act, were effectively repudiated by cer-
tain letters the Respondent sent on January 28,
1988, and February 27, 1989, is irrelevant to the in-
quiry before us. In either case, any repudiation
could not have taken effect prior to the expiration
dates of the agreements.2 The information request-
ed was stipulated to be relevant to the Union's per-
formance of its duties as collective-bargaining rep-
resentative. The Respondent is obligated to supply
that information, regardless of the current state of
the parties' bargaining relationship, because the re-
quest was made at a time when both master collec-
i The judge's statement that the commencement date for the Lower
Peninsula agreement was May 1, 1988 , is erroneous
2 We note that the judge misquoted the letters in his decision by stating
that the Respondent informed the Union that it did wish to renew its
agreement The letters in fact state that the Respondent did not wish to
renew its agreement. As indicated above, this error has no bearing on the
outcome of this case
747
tive-bargaining agreements were in effect. In reach-
ing this conclusion, we need not decide the effect
of any actions taken by the parties subsequent to
the refusal to provide information.3
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge's Conclu-
sions of Law 3 and 4.
"3. All employees of the Company performing
work within the work jurisdiction represented by
the Union constitute a unit appropriate for the pur-
poses of collective bargaining.
"4. At all times material to the request for infor-
mation, the Union, by virtue of Section 8(f), was
the limited exclusive representative of all the em-
ployees in the unit described above."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Crittenden
Construction Company, Alpena, Michigan, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
' We thus do not rely on the judge 's legal conclusions regarding the
continuing effectiveness of the two contracts at issue, nor do we adopt
his finding that, "even if the Company had effectively terminated its con-
tract with the Union , Deklewa would be inapplicable because the Compa-
ny voluntarily chose to continue its bargaining relationship with the
Union ." See Garman Construction Co, 287 NLRB 88, 89 fn. 5 (1987).
Joseph P. Canfield, Esq., for the General Counsel.
James L. Mazrum, Esq., of Alpena, Michigan , for the Re-
spondent.
Frederick B. Gold, Esq ., of Birmingham , Michigan, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. This case
was heard at Alpena, Michigan, on October 3, 1989. The
charge was filed on May 12, 1989 by Operating Engi-
neers Local 321, International Union of Operating Engi-
neers, AFL-CIO (the Union). The complaint, which
issued on June 29, 1989, alleges that Crittenden Con-
struction Company, Inc. (Respondent or the Company)
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 which was necessary for and rel-
evant to the Union's functions as the exclusive bargain-
ing representative of the Company's employees in an ap-
propriate 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
Union and the Company each submitted a brief.
298 NLRB No. 108
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On the entire record in this case and from my observa-
tion of the demeanor of the witnesses, and having con-
sidered the briefs and arguments of the parties, I make
the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, a Michigan corporation with its princi-
pal office and place of business in Alpena, Michigan, is
engaged in performing general construction work. In the
operation of its business, the Company annually pur-
chases goods and materials valued in excess of $50,000
directly from points located outside Michigan. 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 ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
In 1971, following a Board-conducted election (Cases
7-RC-12633 and 7-RC-12582), the Board certified
United Brotherhood of Carpenters and Joiners of Amer-
ica as bargaining representative of the Company's car-
penter employees, and Teamsters Local 186, in sum, as
representative of all other company construction employ-
ees. The Company established bargaining relationships
with both Carpenters and Teamsters local 486, which
have continued to the present time. Nevertheless over
the years the Company entered into collective-bargaining
contracts with other building trades unions. Teamsters
and Carpenters never objected to these arrangements, al-
though jurisdictional disputes have arisen from time to
time. It is evident that the Company and the Unions in-
volved recognize that the Company in its operations has
needs for skilled workers which cannot be satisfied by
the two certified unions, and consequently that it must
also look to other building trades unions.
In 1979 the Company and the Union entered into a
short-form contract. The contract provided in sum that:
(1) the Company agreed to abide by the terms and condi-
tions of the most recent contracts between the Union and
seven multiemployer associations, including the Associat-
ed General Contractors of America, Michigan, Detroit,
and the Upper Peninsula Chapters (AGC), insofar as ap-
plicable to the character of work performed by the Com-
pany; (2) the Company recognized the Union as sole col-
lective-bargaining agent for the Company's "employees
employed within the work jurisdiction represented by
the Union"; (3) the employees were covered by a union-
security clause; (1) the parties agreed to submit jurisdic-
tional disputes to the Impartial Jurisdictional Disputes
Board of the AFL-CIO Building Trades Department; (5)
the short-form contract would be effective until expira-
tion of the association contract applicable to the work
performed by the Company, and would be automatically
renewed with the negotiation of each new applicable as-
sociation contract; and (6) either party could terminate
or propose amendments to the short-form contract by
written notice during the period 60 to 90 days preceding
the termination date of the pertinent association contract
(Master Agreement). The parties also executed an adden-
dum excluding certain classifications of jobs which were
in effect ceded to Teamsters Union jurisdiction. On June
6, 1984, the Company and the Union executed a new
short-form contract, containing the same provisions as
the 1979 contract, with a proviso that the contract was
"subject to National Labor Relations Board agreement."
The previous addendum was dropped. By adding the
proviso, the parties evidently had in mind the prior
Board certification of the Teamsters and Carpenters
Union. i
As indicated, the short-form contract between the
Company and the Union incorporated by reference the
terms of contracts between the Union and seven employ-
er associations. Insofar as pertinent to most work per-
formed by the Company, the pertinent contracts were
those between the Union and Michigan Chapter, Associ-
ated General Contractors of America, Inc. (AGC) cover-
ing respectively the Lower Peninsula of Michigan, ex-
cluding the greater Detroit area (Lower Peninsula con-
tract), and the Upper Peninsula of Michigan (Upper Pe-
ninsula contract). The most recent Upper Peninsula con-
tract was and is effective by its terms from May 15,
1987, through April 30, 1990. There was in effect a
Lower Peninsula contract from May 1, 1988, through
April 30, 1989, which has been succeeded by another
contract. The contracts each purport to cover construc-
tion work within the Union's jurisdiction. The contracts
do not expressly define coverage in terms of job classifi-
cations. However, the contracts establish wage rates and
other terms and conditions for various classifications,
e.g., crane operator, and define equipment, the operation
of which is covered by the contract and requires em-
ployment of an operating engineer.
By letters dated January 28, 1988, to the Union, and
respectively to three employer associations including
AGC, the Company purported to terminate its contrac-
tual relations with the Union. The Company told the
Union and AGC that "we do not wish to renew our
agreement [with the Union] which will expire on June 1,
1988," and that the Company "will not be bound to any
agreement" between the Union and AGC. By letter
dated August 1, 1988, the Union responded that the Jan-
uary 28 notices were "both untimely and improper and,
therefore invalid." The Union asserted that their contract
"will continue in full force and effect until we receive a
both timely and proper notice of termination or modifi-
cation." By letters dated February 27, 1989, the Compa-
ny again purported to terminate its contractual relations
with the Union. The Company informed the Union and
AGC that it did wish to renew its agreement with the
Union "which will expire on April 30, 1989," and that
the Company "will not be bound to any agreement be-
I As will be discussed, the Company and Iron Workers Local 25 were
parties to a series of contracts, the most recent of which provided "Con-
tract not valid wherever Teamsters contract supersedes as per National
Labor Relations Board ruling "
CRITTENDEN CONSTRUCTION CO.
tween [the Union and AGC] as of this date, February 27,
1989." The Company sent a similar letter to the Union
and another employer association (Michigan Road Build-
ers Association). Company President Bruce Crittenden
testified that he canceled his contracts with the Union
and other unions, except Carpenters and Teamsters, in
order "to get it straightened out, who was going to do
which work." The Company has from four to seven em-
ployees who are members of and represented by the
Union. The number varies depending upon work require-
ments. During peak periods the Company has a total
complement of from 80 to 100 construction employees.
The number usually drops to a complement of 30 to 40
employees during slack periods. Crittenden testified that
he told his operating engineer employees that they did
not have a contract. However, the Company has at all
times, and continues, to pay wages and contribute to
fringe benefits as provided under the pertinent Master
Agreement, and to file monthly fringe benefit reports as
required by the Lower Peninsula, Upper Peninsula, and
other association contracts. The fringe benefits include
contributions to the health care, pension, retiree benefit,
vacation, apprentice, and industry advancement funds.
On January 19, 1989, the Company, on union request,
permitted the Union to conduct an audit of its books and
records.
DeVere Construction Company (DeVere) is also en-
gaged in the construction industry, operating out of the
same place of business as the Company. Crittenden testi-
fied that DeVere is owned by his wife (Hazel Critten-
den) and daughters, that Hazel Crittenden is president of
DeVere, and that DeVere qualifies as a minority (female
owned) contractor. DeVere has no contractual relation-
ship with the Union. Union Business Representative
Charles Bartholomew testified in sum that for the past 2-
1/2 years the Union has been concerned about the rela-
tionship between the Company and DeVere, including
use of operating engineers equipment by DeVere under
nonunion conditions, and has expressed its concern to the
Company. By letter dated September 6, 1988,' to the
Company, the Union asserted that the relationships be-
tween the Company and DeVere "may be in direct vio-
lation" of the contract between the Company and the
Union. The Union propounded a list of questions con-
cerning the relationship between the Company and
DeVere. The Company did not answer the questions,
The Union filed an unfair labor practice charge;, which
was subsequently withdrawn. On November 18, 1988,
the Union and its fringe benefit Funds, by their attorney,
sent another letter to the Company. This letter is the
subject of the present complaint. The Union asserted that
it believed the Company and DeVere were alter egos of
each other, and therefore that DeVere was bound by the
contract between the Company and the Union. The
Union further asserted its belief that the Company might
be attempting to use DeVere in order to circumvent the
contract. The Union requested to meet with the Compa-
ny to resolve these matters, and that the Company
answer certain questions in order to aid such resolution.
The Union propounded 41 questions which were ad-
dressed to actual or possible interrelation between the
Company and DeVere. The Company never responded
749
to the letter. Bartholomew testified in sum that the
Union sent the second letter and filed the present charge
because it was unable to settle the matter through negoti-
ations. At the present hearing the Company stipulated
that the questions propounded in the November 18 letter
were relevant and necessary to the Union's role as col-
lective-bargaining agent of its members. However, the
Company reserved its contentions that (1) the Company
was not obligated to furnish the information because the
Company timely severed its relationship with the Union,
and (2) some of the questions were so broad as to be
unduly burdensome. As indicated, the Company never
informed the Union about why it refused to answer the
questions. At the present hearing Crittenden did not
claim that the Company was unable to answer any of the
questions. He testified in sum that some questions were
simple to answer, that some were repetitious, that some
required checking of records, and that some, specifically
questions 23, 24, and 25, were "very complex." Ques-
tions 23, 24, and 25 state as follows:
23. What positions, including management and
supervisory, in DeVere Construction Company,
Inc. have been or are currently held by each offi-
cer, shareholder, director , management employee or
supervisory employee of Crittenden Construction
Company, Inc.?
24. Identify the person who occupied the posi-
tions set forth in your response to the next preced-
ing question and identify the period of time which
that person held the position stated.
25. What positions, including management and
supervisory, in DeVere Construction Company,
Inc. have been or are held by former officers, share-
holders, directors , management employees or super-
visory employees of Crittenden Construction Com-
pany, Inc.?
During the period from January to June 1989, the
Company and the Union met several times in negotia-
tions. Crittenden testified that they met "to renegotiate a
new contract." The Union asked Crittenden to sign a
new short-form contract. Crittenden refused unless the
Union agreed to recognize a "vertical contract" which
the Company had signed with the Carpenters ' union,
whereby Carpenters were permitted to do the work of
all crafts on maintenance and renovation projects. The
Union would not agree to this condition, and the Car-
penters' union would not agree to relinquish its contract.
The union asked Crittenden to "sign up" nonunion em-
ployees of DeVere who were performing work normally
done by operating engineers . Crittenden said he could
not because the employees were- also doing the work of
other crafts. Crittenden also said that they were making
less than union scale, and he could not afford to pay
them the contract rate. The Union suggested that they
could negotiate a market recovery agreement, under
which contract rates or rules could be relaxed. The par-
ties were unable to reach agreement.
In December 1987 the Board issued its Decision and
Order in Crittenden Construction Co., 287 NLRB 110,
finding and concluding that the Company violated Sec-
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion 8(a)(5) and (1) of the Act by refusing to furnish cer-
tain information requested by Iron Workers Local 25. As
indicated, the Company and Iron Workers Local 25
were parties to a series of contracts. The requested infor-
mation pertained to work ostensibly being performed by
employees represented by Teamsters' Local 186. Iron
Workers' asserted in sum that it had reason to believe
that the work was of a type covered by its contract with
the Company. The Board found in sum that: (1) At the
time Iron Workers Local 25 and the Company were par-
ties to a valid and enforceable collective-bargaining con-
tract; (2) Iron Workers Local 25 was and is the bargain-
ing representative of the Company's employees engaged
in certain work described in their contract: (3) the re-
quested information was relevant and necessary to Iron
Workers' performance of its responsibilities to police the
contract and evaluate and process grievances; and (4)
therefore the Company violated Section 8(a)(5) and (1)
by refusing to furnish the requested information.
B. Analysis and Concluding Findings
I find that the Company violated and is violating Sec-
tion 8(a)(5) and (1) of the Act by failing and refusing to
furnish the information requested by the Union in its No-
vember 18, 1988 letter. At that time, and at all times
since, the Company has been and is party to a valid and
enforceable collective-bargaining contract with the
Union. The Company's purported termination notices of
January 28, 1988, were ineffective because they were un-
timely. As indicated, the short-form agreement provided
that termination notice could be given only during the
window period of the pertinent Master Agreement, i.e.,
the period 60 to 90 days preceding expiration of the
Master Agreement. As the termination notices were un-
timely, the Company remained a party to the short-form
contract and bound by both the Upper Peninsula and
Lower Peninsula contracts as of November 1988, when
the Union made its request. The Company's notices of
February 27, 1979, were also ineffective. The notices
were untimely as to the Upper Peninsula contract, which
as indicated has an expiration date of April 30, 1990. The
notices were also invalid as to the Lower Peninsula con-
tract, because the Company purported to terminate all
contracts immediately, instead of as of the expiration
date of the contract (as to the Lower Peninsula contract,
April 30, 1989). Moreover, even if the Company termi-
nated its contractual relationship with the Union in a
timely and effective manner (which it did not) the Com-
pany never terminated its collective-bargaining relation-
ship with the Union. The Union was at all times material
and continues to be the bargaining representative of the
Company's employees within the work jurisdiction rep-
resented by the Union. The Union's representative status
is comparable to that of Iron Workers Local 25, as deter-
mined by the Board in Crittenden Construction Co., supra.
As in that case, the existence of the bargaining relation-
ship is not dependent on resolution of actual or potential
jurisdictional disputes. The Company never sought to
terminate that relationship. Rather, as indicated the Com-
pany refused to sign a new short form contract only be-
cause it was unable to reach agreement with the Union
on the terms of a new contract. In the meantime the
Company has negotiated and dealt with the Union as the
representative of its operating engineer employees, and
continues to pay contractual wage rates and make contri-
bution to all contractual fringe benefit funds. Therefore
the Company's reliance on John Deklewa & Sons, 282
NLRB 1375 (1987), enfd. 843 F.2d 770 (3d Cir. 1988), is
misplaced. Deklewa permits, but does not require, an em-
ployer in the construction industry to terminate a bar-
gaining relationship upon expiration of a prehire agree-
ment. Therefore even if the Company had effectively
terminated its contract with the Union, Deklewa would
be inapplicable because the Company voluntarily chose
to continue its bargaining relationship with the Union.
As the Union was and is the collective-bargaining rep-
resentative of the Company's employees in an appropri-
ate unit, it follows that the information requested by the
Union was relevant and necessary to the performance of
the Union's functions as bargaining representative. The
Company has so stipulated. See also Corson & Gruman
Co., 278 NLRB 329, 332-334 (1986), see fn. 2 and cases
cited, enfd. 811 F.2d 1504 (4th Cir. 1987). The remaining
arguments advanced by the Company are without merit.
If the Company found it difficult to answer any of the
questions, or did not understand a particular question, it
should have so informed the Union. Instead the Compa-
ny chose to completely disregard the Union's letter.
Having failed to afford the Union an opportunity to con-
sider any objections by the Company, the' Company
cannot now lawfully argue that it would be burdensome
to answer some questions. See Tower Books, 273 NLRB
671 (1984), enfd. mem. 772 F.2d 913 (9th Cir. 1985); Col-
gate-Palmolive Co., 261 NLRB 90, 92-93 (1982), enfd. 711
F.2d 348, 363 (D.C. Cir. 1983). Moreover, on examina-
tion of the Union's letter, and consideration of Critten-
den's testimony, I am not persuaded that any of the ques-
tions are unduly burdensome or otherwise improper.
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 work
within the work jurisdiction represented by the Union
constitute a unit appropriate for the purposes of collec-
tive 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 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.
CRITTENDEN CONSTRUCTION CO.
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
Act. I shall recommend that the Company be ordered to
promptly furnish the Union with the information request-
ed in its letter of November 18, 1988, and to post appro-
priate notices.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Crittenden Construction Company,
Inc., Alpena, Michigan, its officers, agents, successors,
and assigns, shall
Cease and desist from
(a) Failing or refusing to bargain collectively with Op-
erating Engineers Local 324, International Union of Op-
erating Engineers, AFL-CIO as the exclusive collective-
bargaining representative of all employees of the Compa-
ny performing work within the work jurisdiction repre-
sented by the Union, by failing or refusing to furnish the
Union with information which is relevant and necessary
to its function as such representative.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
3. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Promptly furnish the Union with the information
requested by its letter of November 18, 1988, pertaining
to the Company and DeVere Construction Company,
Inc.
(b) Post at its Alpena, Michigan place of business,
copies of the attached notice marked "Appendix"3
Copies of the notice on forms provided by the Regional
Director for Region 7, after being signed by Respond-
ent's authorized representative, shall be posted by Re-
2 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.
3 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 "
751
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced, or cov-
ered 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.
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 Operating Engineers Local 324, International Union
of Operating Engineers, AFL-CIO as the exclusive col-
lective bargaining representative of all our employees
performing work within the work jurisdiction represent-
ed by Operating Engineers Local 324, by failing or refus-
ing to furnish said Local 324 with information which is
relevant and necessary to its function as such representa-
tive.
WE WILL NOT in any like or related manner interfere
with, restrain, or coere you in the exercise of your right
to engage in union or concerted activities, or to refrain
therefrom.
WE WILL promptly furnish the Local 324 with the in-
formation requested by its letter of November 18, 1988,
pertaining to Crittenden Construction Company, Inc. and
DeVere Construction Company, Inc.
CRITTENDEN CONSTRUCTION COMPANY, INC.