Davis Acoustical Co., Inc.

National Labor Relations Board - Board Decisions

Aug 7, 1986

280 N.L.R.B. 1432 (N.L.R.B. 1986)

1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Davis Acoustical Co., Inc. and United Brotherhood
of Carpenters and Joiners of America, Local
Union No. 43 . Case 39-CA-2721
7 August 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 27 March 1986 Administrative Law Judge
John H. West issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
the General Counsel filed cross-exceptions and a
supporting brief, and the Respondent filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Davis
Acoustical Co., Inc., East Hartford, Connecticut,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
1 In finding that the Respondent was an employer engaged in com-
merce within the meamng of Sec 2(2), (6), and (7) of the Act, the judge
omitted the commerce data alleged in the complaint and admitted by the
Respondent in its answer . During the 12-month period ending 31 August
1985 the Respondent, in the course and conduct of its business oper-
ations, purchased and received at the East Hartford facility products,
goods, and materials valued in excess of $50,000 directly from points out-
side the State of Connecticut
' The General Counsel has requested that the Order include a visita-
tonal clause authorizing the Board, for compliance purposes, to obtain
discovery from the Respondent under the Federal Rules of Civil Proce-
dure under the supervision of the United States Court of Appeals enforc-
mg this Order Under the circumstances of this case, we find it unneces-
sary to include such a clause Accordingly, we deny the General Coun-
sel's request.
Harvey M. Shrage, Esq., for the General Counsel.
Peter R. Spans, Esq. (Hendrick, Spanos & Phillips, P.C.),
of Atlanta, Georgia, for the Respondent.
J. William Gagne Jr., Esq., of Hartford, Connecticut, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. On a
charge filed 1 August 19851 by United Brotherhood of
I All dates are in 1985 unless stated otherwise
Carpenters and Joiners of America, Local Union No. 43
(the Union), a complaint was issued on 13 September al-
leging that Davis Acoustical Co., Inc. (Respondent) vio-
lated Section 8(a)(1) and (5) of the National Labor Rela-
tions Act, 29 U.S.C. § 151 et seq. (the Act), by failing
and refusing to provide the Union, with which it had a
collective-bargaining agreement , with certain information
relating to the relationship between Respondent and Ad-
vanced Interiors, Inc. (Advanced). Respondent denies
the allegation.
A hearing was held in Hartford, Connecticut, on 14
January 1986. On the entire record in this case, including
my observation of the demeanor of witnesses and consid-
eration of the briefs filed by the General Counsel, Re-
spondent, and the Charging Party, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Connecticut corporation, is engaged in
the construction industry as an acoustical contractor.
The complaint alleges, the Respondent admits , and I find
that at all times material , Respondent has been an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union has
been a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
On introducing two Joint Exhibits, namely, 8 and 9,
respectively, between the United Brotherhood of Car-
penters and Joiners of America and the Ceilings and In-
terior Systems Contractors Association, and between the
Union and the Labor Relations Division the Associated
General Contractors of Connecticut, Inc., the parties en-
tered the following stipulation:
MR. SHRAGE: Your Honor, with regard to Joint
Exhibits 8 and 9 which have been marked by the re-
porter, the parties have agreed to the following stip-
ulation: That since August, 1981, Davis Acoustical
Company has been and is currently a signatory to a
collective bargaining agreement entered into in No-
vember of 1980 between the Ceilings and Interior
Systems Contractors Association and United Broth-
erhood of Carpenters and Joiners of America.
As a result of being a signatory to that agree-
ment , Davis Acoustical is required inter alia to pay
wages as provided for within bona fide local area
agreements including contributions to duly negotiat-
ed employee fringe benefit funds.
The relevant bona fide local area agreement is
the agreement between United Brotherhood of Car-
penters and Joiners of America, Local Union No.
43, Hartford, Connecticut, and Labor Relations Di-
vision, the Associated General Contractors of Con-
necticut, Inc. effective June 1, 1984, thru March 31,
1987.
280 NLRB No. 168
DAVIS ACOUSTICAL CO
Joseph Coombs, a business representative of the
Union, testified that in late November or early Decem-
ber 1984 either he or his assistant, Business Representa-
tive Bob Loubier , received a telephone call from Gerald
Lebeau , a shop steward for the Union who was working
on the Riverview Square project in East Hartford, Con-
necticut ; that Lebeau indicated that there appeared to be
acoustical and/or drywall work getting ready to start on
the Riverview Square project; that either he or Loubier
told Lebeau to call back when someone showed up to do
this work; that subsequently Lebeau called back indicat-
ing that he had been informed that it was either an Ad-
vanced Construction or Advanced Interiors ; that later
Lebeau again called the Union indicating that he had
seen a Davis Acoustical Company truck on the job
loaded with material , and that it was being unloaded by
personnel from Advance Interiors or Contractors ; that in
early December he had an opportunity to visit the
project at Riverview Square and there he observed
stockpiles of material used in the construction of
drywall ; that on the stockpiled material there appeared
the name of Davis Acoustical Co., Inc . along with what
appeared to be a purchase order number; that he took
two pictures (G.C. Exhs. 2(a) and (b)) at the Riverview
Square project on 7 December 1984 which pictures
depict , respectively , a pallet jacket with what appeared
to be "DAVIS" painted on it , and the above-described
stockpile of what appeared to be metal studs ; that later
that month he went to the Connecticut Secretary of
State's office , Corporate Information Division, and re-
quested information on Davis and Advanced Interiors re-
garding their corporate structure, officers , and addresses;
that although he was able to obtain information on Davis
he obtained none on Advance;2 and that although he fur-
nished the information from the Secretary of State's
office to the Union 's attorney , J. William Gagne Jr.,
Coombs , did not furnish the information to either the
National Labor Relations Board or Davis and to the best
of his knowledge he did not believe that Gagne fur-
nished the information to Davis.
On the date indicated, Gagne forwarded the following
letter (Jt. Exh. 1):
CERTIFIED MAIL
February 8, 1985
Mr. Kenneth M. Grimm , Vice President
Davis Acoustical Co. Inc.
43 Thomas Street
East Hartford, CT 06108
Dear Mr. Grimm:
Please be advised that our office represents Local
Union 43 of the United Brotherhood of Carpenters
and Joiners of America , AFL-CIO . It has come to
our attention that your Company is or may be in
violation of the collective bargaining agreement
with Local Union 43, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO by
virtue of its relations to Advanced Interiors, Inc.
2 A copy of the Union's 18 December 1984 check to the Secretary of
State for the service was received herem as G C Exh. 3
1433
We believe that the above mentioned company is
performing or has performed work that was previ-
ously performed or would have been performed by
your own Company. Furthermore , we believe that
there is a connection between your Company and
the above mentioned Company, Advanced Interi-
ors, Inc . either through intertwined financial or
business arrangements and/or commom [sic], shared
usage of headquarters , equipment or management
and labor relations personnel . We maintain that
there is a great likelihood that the Davis Acoustical
Company Inc., is using Advanced Interiors , Inc. to
circumvent the provisions of the collective bargain-
ing agreement between Carpenters Local 43 and
Davis Acoustical Co. Inc ., specifically Article I,
Section 4 and Article VI.
We are requesting the following information as a
prerequisite to pursuing all legal remedies available
to us under the agreement . This information is es-
sential in order to assure that we fulfill our duties as
bargaining representative and that all bargaining be-
tween the parties is bona fide and in good faith. We
are requesting that the responses you give to these
questions cover the past two years and also include
all current and prospective plans . We further re-
quest that your responses to these questions be re-
turned to this office within twenty (20) days of the
date of this letter.
Please note as well that it has come to our atten-
tion that your company or companies through
Davis Acoustical Co. Inc ., and/or Advanced Interi-
ors, Inc. both of East Hartford, Connecticut may
have a relationship to the Davis Specialties Corp. of
Troy, New York a corporation also known as the
Davis Acoustical Co., Inc . I am requesting on
behalf of Local Union 43, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO that
Davis Acoustical Co. Inc., of East Hartford, Con-
necticut explain the exact nature of the relationship
that exists , has existed or will be existing between
itself and Davis Specialties Corp (or should it be
known also as Davis Acoustical Co., Inc .) of Troy,
New York. Should there be a relationship between
either of these companies and Advanced Interiors,
Inc., my client also requests that you divulge this
information.
Your prompt attention to these questions is
urged.3
Regarding the above-described letter, Coombs testified
that he authorized Attorney Gagne to send the letter
"because based upon what I had observed at the job sites
and information that I obtained at the Secretary's of
State 's office , I had reason to believe there was, perhaps,
an illegal double-breasted operation occurring on this
project"; and that Coombs did not participate in drafting
9 The questions contained in the 79 numbered paragraphs are set forth
in App. A [omitted from publication] It was stipulated that the letter was
received by Respondent on 15 February
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the questions in the letter. A duplicate of this letter was
again forwarded on 15 February.
In late February or early March 1985 Coombs visited
the Clock Tower jobsite in Manchester , Connecticut. He
testified that the contractor for the drywall/acoustical
work on the Clock Tower jobs was Advanced Interiors;
and that in the building he observed Davis' equipment
(see photographs received as G.C. Exhs. 4(c) and (d))
and outside the building he observed stockpiles of mate-
rial which are labeled Davis Acoustical Co., Inc. (See
photographs received as G.C. Exhs. 4(a) and (b).)
Also, in late February or early March 1985, Coombs
visited the Riverview jobsite in East Hartford. He testi-
fied that while there he observed "similar amounts or
types of material on the job site and equipment, as .. .
[he] had observed on . . . [his] previous visit"; and that
the equipment he saw on the jobsite had "painted mark-
ings saying Davis on them." (See photographs received
as G.C. Exhs. 5(a), (b), and (c).)
About the same time , Coombs went to see Davis'
place of business at 43 Thomas Street in East Hartford.
Again he brought along his camera. (All the above-de-
scribed pictures were taken by Coombs.) Although he
did not go in, he photographed the front and back of the
building . As shown in his photographs (G.C. Exhs. 6(b)
and (c)), there are two entrances at the front of the
building and between both entrances and the sides of the
building there are signs , with one indicating Davis
Acoustical Co., Inc. and the other Advanced Interiors,
Inc. As shown in the photograph received as General
Counsel's Exhibits 6(a) there are three doors in what
Coombs testified is the back of the building. One appears
to be the same size as the two front "walk in" doors.
The other two are garage-type doors at openings which
appear to be docks because they are raised off the
ground and have bumper pads. One of the two larger
doors has a sign which reads "RESERVED FOR
DAVIS ACOUSTICAL." As Coombs testified there is
no other sign on the back of the building indicating Ad-
vanced Interiors.
Respondent's attorney, Peter R. Spanos, forwarded the
following (Jt. Exh. 2), on 1 March:
Dear Mr. Gagne:
Kenneth M. Grimm, President of Davis Acousti-
cal Company, Inc., has referred your letter dated
February 8th, 1985 requesting information on behalf
of Local Union No. 43, United Brotherhood of Car-
penters and Joiners to this firm for our advice.
Please be advised that, although our consultation
with the company will delay a response beyond the
twenty days requested in your letter, we intend to
advise the company concerning its obligation, if
any, to respond to Local Union No. 43's request.
You may expect to receive a reply from Davis
Acoustical Company, Inc. within approximately the
next two weeks.
Loubier testified that on 21 March 1985 he visited the
Riverview jobsite in East Hartford; that Davis was not
working at that jobsite at that time; that while on the
jobsite he observed two employees who had worked for
Davis, namely, Jim Abomondi and Jeff Esposito (Lou-
bier's onsite photograph of the former was received as
G.C. Exh. 7.); that he had previously worked with these
two men on another project when they were employed
by Davis; that documents which have come to the Union
indicate that at some unspecified time in 1985 after 21
March both men were back on Davis' payroll; and that
when he visited the Riverview jobsite he spoke with
both men as follows:
I went over and I introduced myself, and I had
conversations with . . . [Esposito]. I asked him
what-if he knew that Advanced Interiors had no
agreement with our Local union, and that, there-
fore, he could not be receiving fringe benefits.
He said he realized this, but he had a family to
feed, Davis had no work so they offered him this
job, and he was going to go to work.
And then Mr. Abomondi stated that he was
working with Mr. Esposito who was the foreman
on the job, and he was just helping him layout for a
couple of weeks because he was needed there and
Davis at that time had no work for him also, and he
was only going to be there for a short period of
time.
Subsequently , on 1 April, Grimm forwarded the fol-
lowing (Jt. Exh. 3):
Re: Your letter of February 8, 1985
Dear Mr. Gagne:
This is in response to your letter requesting that
Davis Acoustical Co., Inc. respond to a lengthy and
detailed questionnaire concerning both its oper-
ations and the operations of a company known as
Advanced Interiors, Inc.
Your letter generally refers to alleged "circum-
vention" of this company's agreement with Local
No. 43, United Brotherhood of Carpenters. Howev-
er, the questionnaire appears to be a standard form
similar to one in use by the Carpenters unions
throughout the country. In the case of this compa-
ny, we are not aware of any violations of the agree-
ment. In addition, the information requested in your
questionnaire is normally kept confidential by this
company. Furthermore, approximately half of your
79 questions relate to a company called Advanced
Interiors, Inc., and we of course would be unable to
respond to those requests for information.
Davis Acoustical Co., Inc. would not refuse to
comply with any request for information which is
relevant to Local No. 43's collective bargaining ef-
forts and administration of the collective bargaining
agreement and not otherwise privileged. However,
in order to obtain information, Local No. 43 must
demonstrate the reasonable and probable relevance
of the information sought. Serving a lengthy stand-
ard form does not, we believe, comply with this re-
quirement. Accordingly, you must demonstrate the
relevance of this information until the relevance of
the particular questions and the basis of the union's
DAVIS ACOUSTICAL CO.
good faith belief that a "circumvention " has oc-
curred has been demonstrated.
Please bear in mind that most of the information
which you seek is considered highly confidential be-
cause its release could seriously jeopardize the com-
pany 's ability to compete in bidding for work.
Although your letter makes certain very broad
allegations , you do not specify the facts supporting
Local No 43's belief that the collective bargaining
agreement has been violated . Nor does the letter
refer to any grievance which has been filed under
the collective bargaining agreement which Local
No. 43 is investigating . While we do not expect
Local No. 43 to prove a violation of the agreement
or the existence of facts stated in any grievance
filed before requesting information , we are entitled
to know that basis for Local No. 43's suspicions
that either a violation has occurred or a valid griev-
ance may be filed, Furthermore, we are entitled to
know specifically what portions of the collective
bargaining agreement it is suspected have been vio-
lated.
In conclusion , Davis Acoustical Co., Inc. de-
clines to furnish this information requested , for the
reasons stated above, until and unless you demon-
strate the relevance of the particular questions.
Gagne, on 15 July, forwarded Joint Exhibit 4 which
reads as follows:
Re: Your letter of April 1, 1985
Dear Mr. Grimm:
In response to your letter , Local 43, United
Brotherhood of Carpenters (herein Local 43) has a
collective bargaining agreement which Davis
Acoustical Co., Inc . (herein Davis). In our efforts to
"police" the agreement we visit various job sites.
During our visits we uncovered information that
we believe provides an objective basis for believing
that unit work is being diverted to Advanced Interi-
ors Co ., Inc. of East Hartford , Connecticut (herein
Advanced). On or about February 27, 1985 and
March 3, 1985 , representatives of Local 43 visited
the Clock Towers project in Manchester , Connecti-
cut on which Advanced is the subcontractor.
Thereon, they saw stockpiles of material, metal
studs , portable scaffolds and ladders with the name
"Davis" written on them.
On March 21 , 1985, these same representatives
visited the River View Square project in East Hart-
ford, Connecticut and saw employees of Davis per-
forming carpentry work for Advanced.
On or about June 10 , 1985, these same represent-
atives saw employees of Advanced , who were
working on the River View Square project, begin
performing carpentry work on the Clock Towers
project, Manchester, Connecticut and employees of
Davis began performing carpentry work at River
View Square , East Hartford.
On or about December 3, 1984 , equipment with
Davis written on it was seen on the River View
project , on which Advanced was the subcontractor,
1435
being used by Advanced employees doing carpen-
try work.
On or about December 18, 1984 , a union steward
observed a Davis truck on its East Hartford loca-
tion being unloaded by employees of Advanced.
Additionally, both Advanced and Davis share the
same site in East Hartford and the rear of the build-
ing has only one entrance marked for Davis em-
ployees.
Local 43 contends that this type of conduct pro-
vides an objective basis for believing that the con-
tract with Davis is being violated , including but not
limited to , the following sections : Section 1; Section
2; Section 3; Section 4; Section 5; Section 6; Section
7; Section 8; Section 9; Section 10; Section 14; and
Section 19.
This is a renewed demand to respond to the ques-
tionnaire submitted by Davis on or about February
15, 1985. If I do not receive a response within seven
(7) days, I shall proceed to take appropriate legal
action.
It was stipulated that Respondent received this letter on
16 July.
By letter dated 17 July (Jt. Exh . 5), Grimm advised
Gagne that Grimm was reviewing the matter with
Spanos and would respond as soon as possible.
On 8 August Spanos forwarded the following letters
(Jt. Exh. 6):
Dear Mr. Gagne:
Mr. Kenneth M. Grimm , President of Davis
Acoustical Company , Inc., has consulted with me
concerning your letter to him on behalf of Local
No. 43 , United Brotherhood of Carpenters dated
July 15th . Based upon your letter, I understand that
your client , Local No . 43, is concerned whether
bargaining unit work is being 'diverted ' to a compa-
ny called Advanced Interiors, Inc.
Based upon my discussion with Mr. Grimm, it
appears that you are in receipt of inaccurate infor-
mation , or have drawn the wrong conclusion from
observations at the job sites mentioned in your
letter . To satisfy the concerns of your client, I have
requested that Mr. Grimm prepare the enclosed
letter concerning the work performed by Davis
Acoustical Company , Inc. and , to the extent that he
has knowledge of it , of Advanced Interiors , Inc., on
the jobsites mentioned in your letter . After review-
ing this information , I believe that you and Local
No. 43 will agree that the collective bargaining
agreement between Davis Acoustical Company,
Inc. and Local No. 43 has not been violated.
Although your letter refers to "our" efforts and
jobsite visits , I assume that you are referring to ob-
servations made by officers or employees of Local
No. 43 , which were then reported to you , and not
to visits by you or other members of your law
office.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 7, 1985
Law Offices of J. William Gagne, Jr.
207 Washington Street
Hartford, CT 06106
Re: Your Letter of July 15th, 1985
Dear Mr. Gagne:
Our legal counsel has suggested that I address in
this letter Local 43's concerns about the Clock
Towers and Riverview projects, as discussed in
your letter.
During January, 1985, Davis Acoustical Compa-
ny, Inc. was offered a Purchase Order to provide
material only including, but not limited to, metal
studs, insulation and miscellaneous beads and fasten-
ers for the Clock Tower project in Manchester, CT,
along with a lease agreement for rental of scaffold-
ing and stagings , by Advanced Interiors, Inc. It is
my understanding that Advanced Interiors, Inc. is
the interior finishing subcontractor on this project.
The general contractor is General Contracting, Inc.
During December, 1984, Advanced Interiors,
Inc. leased equipment from Davis Acoustical and
purchased material, and later offered a sub-subcon-
tract in April, 1985 for installation of acoustical ceil-
ing grid to Davis Acoustical Company, Inc. at the
H.B. Complex (Riverview Square) project in East
Hartford, CT. Again, it is my understanding that
Advanced Interiors, Inc. is the interior finishing
subcontractor on that project. The general contrac-
tor is H.B. Associates, Inc.
Davis Acoustical Company, Inc. has performed
their sub-subcontract, which includes supplying
labor and materials, and using its own supervisory
and craft employees . Our work started in May, 1985
on H.B . Complex and Davis had no employees in
the jobsite on the alleged 3/21/85 date. As a sub-
subcontractor, or material supplier, Davis Acousti-
cal Company, Inc. did not direct or otherwise
become involved in the operations of Advanced In-
teriors, Inc. at either the Clock Towers or River-
view Square projects. Obviously, the employees of
both companies must be present on a jobsite in
order to perform their respective tasks under Davis
Acoustical Company, Inc.'s sub-subcontract and the
remaining work under Advanced Interiors Inc.'s
subcontract.
Davis Acoustical Company, Inc. has sold materi-
al to Advanced Interiors, Inc. which were used at
the Clock Towers and Riverview projects. Needless
to say, Davis Acoustical Company, Inc. has been
paid in full for these materials . Also, Davis Acousti-
cal Company, Inc. leased certain equipment to Ad-
vanced Interiors, Inc., which I understand was a
part of the equipment used by Advanced on the
project. Again, Davis Acoustical Company, Inc. has
been paid an adequate rental for this equipment.
As far as the unloading of a Davis Acoustical
Company, Inc. truck on or about December 18th, I
am sure that you can understand that when materi-
als are sold to another company such as Advanced
Interiors, Inc. it is necessary for that company to
unload these materials when supplied.
Finally, please be advised that Davis Acoustical
Company, Inc. rents its office space at 43 Thomas
Street under a lease from Joseph L. A. Roberts. We
do not in any respect share office space with or sub-
lease space to Advanced Interiors, Inc., although
that company does, I believe, have a lease for adja-
cent space with the same landlord.
As I am sure you are aware, it is not a violation
of our collective bargaining agreement with Local
43 to obtain a subcontract for work from another
company, even if that company is nonunion , or is it
a violation of the Agreement to sell materials or
lease equipment to a nonunion company. I would
like to point out that, if Davis Acoustical Company,
Inc. had been unable to obtain subcontracts from
Advanced Interiors, Inc. for the acoustical grid
work at these projects, and to sell materials and
lease equipment , both the revenues of this company
and the job opportunities for bargaining unit mem-
bers represented by Local No. 43 would be greatly
reduced. I am sure that Local No. 43 does not wish
for Davis Acoustical Company, Inc. or its employ-
ees to suffer that hardship.
Sincerely,
Davis Acoustical Company, Inc.
Kenneth M. Grimm
President
As noted above, the charge was filed on 1 August, and
the complaint was issued on 13 September.
Also, on 13 September, Grimm forwarded the follow-
ing letter (Jt. Exh. 7):
Dear Mr. Gagne:
In my letter of August 7, 1985, concerning Local
No. 43's request for information to Davis, I set
forth the facts regarding the presence of Davis
Acoustical equipment on certain jobs being per-
formed by Advanced Interiors, Inc. and described
the subcontracting and leasing arrangements which
accounted for the presence of Davis employees and
material on certain jobs. I felt that this information,
voluntarily provided by Davis, refuted Local 43's
erroneous conclusions drawn from its observations
and expected that Local 43 would withdraw the
unfair labor practice charge it had filed just prior to
Davis's response to the request.
Of course, Davis Acoustical is willing to provide
documentation and other evidence to back up the
statements made in our letter of August 7. If Local
43 would be willing to withdraw the charge, Davis
will provide such evidence.
Please let me know as soon as possible if we can
resolve this matter by voluntarily providing this in-
formation.
The parties stipulated that the Respondent did not re-
ceive a response to this letter.
DAVIS ACOUSTICAL CO.
B. Conclusions
In my opinion Respondent has violated the Act as al-
leged in the above-described complaint.
As indicated by the court in NLRB v. Leonard B. Her-
bert, Jr. & Co., 696 F.2d 1120, 1124 (5th Cir. 1983):
Well-established labor law precedent imposes
upon employers a duty "to provide information that
is needed by the bargaining representative for the
proper performance of its duties." NLRB v. Acme
Industrial Co., 385 U.S. 432, 435-36, 87 S.Ct. 565,
568, 17 L.Ed.2d 495 (1967). An employer' s refusal
to furnish information relevant to a union 's negotia-
tion or administration of a collective bargaining
agreement may constitute a breach of the employ-
er's duty to bargain in good faith in violation of §
8(a)(5) of the Act, 29 U.S.C. § 158(a)(5). NLRB v.
Acme Industrial Co., supra, 385 U.S. at 435-36, 87
S.Ct. at 567-68; Detroit Edison Co. v. NLRB, 440
U.S. 301, 303, 99 S.Ct. 1123, 1125, 59 L.Ed.2d 333
(1979).
The situation here is virtually indistinguishable
from one faced recently by the Ninth Circuit.
NLRB v. Associated General Contractors of Califor-
nia, Inc., 633 F.2d 766 (9th Cir. 1980), cert. denied
452 U.S. 915, 101 S.Ct. 3049, 69 L.Ed2d 418 (1981).
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, discovery-
type standard by which relevancy of requested in-
formation is to be judged. Id.; Acme Industrial 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 770 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
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 Contractors, 633 F.2d at 770, and
thus the Union here has the initial burden of show-
ing relevancy. . . . [E]vidence, acquired by the
Union before it requested the information, and testi-
fied to at the hearing before the ALJ, formed a rea-
sonable basis for further investigation of the sus-
pected double breasting . This is to say that the type
of information sought by the Union would assist it
in confirming its suspicions and thereby allow it to
make an informed choice4 whether to pursue legal
means by which it could hold the nonunion compa-
1437
nies to the terms of the collective bargaining agree-
ments involved here.
4 See Acme Industrial Co, 385 U S at 438 n 8, 87 S Ct at 569
n. 8, quoting Fafnir Bearing Co Y. NLRB, 362 F 2d 716, 721 (2d
Cir 1966) ("By preventing the Union from conducting these stud-
ies [for an intelligent appraisal of its right to grieve] , the Company
was, in essence , requiring it to play a game of blind man's bluff")
(bracketed changes appearing in Supreme Court opinion)
In an earlier footnote, viz, footnote 1 at 1122 the court
described double-breasted operations as follows:
We recently explained how a "double-breasted"
or "open shop/closed shop" operation works in
Florida Marble Polishers Health & Welfare Trust
Fund v. Edwin M Green, Inc., 653 F.2d 972, 976 n.
7 (5th Cir. 1981), cert. denied . . . 102 S.Ct. 2235,
72 L.Ed2d 846 (1982). Such an operation is one al-
lowing an employer to compete for both union and
nonunion work. For instance, a subcontractor will
operate two corporations, one hiring strictly union
employees; the other, nonunion employees. The
former will bid on jobs from general contractors
who utilize only unionized subcontractors; the latter
bids only on work from general contractors who
use nonunion workers. Id. A double breasted oper-
ation may or may not violate a labor contract.
On brief, the General Counsel contends that based on the
response it received from the office of the Connecticut
Secretary of State, the Union had a good-faith reason to
conclude that Advanced Interiors, Inc. was in fact not a
corporation at all, but merely a "corporate fiction."
In the instant proceeding the Union had information
which reasonably led it to believe that Respondent might
be conducting a double-breasted operation for the pur-
pose of circumventing contractual requirements. In seek-
ing information from Respondent regarding its relation-
ship with Advanced, the Union cited the relevant part of
the involved contract and the Union gave some of the
basis for its concern.
The Union had reasonable grounds to believe that a
diversion of bargaining unit work to Advanced might
have occurred and, therefore, its request for information
concerning Respondent's relationship with Advanced
met the test of necessity and relevance. The Union "has
shown the relevance of the information sought and it is
entitled to the specific information requested and need
not accept Respondent's conclusionary statements." Dou-
barn Sheet Metal, 243 NLRB 821, 824 (1979).' By refus-
ing to supply the information requested Respondent vio-
lated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
4 As indicated above, Respondent was not even willing to show the
Union the support for its conclusionary statements unless the Union with-
drew the charge it filed herein.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By failing and refusing to provide the Union with
the information it requested in its above-described 8 Feb-
ruary letter to Respondent , the Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(5) and
(1) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
eds
ORDER
The Respondent , Davis Acoustical Co., Inc ., Hartford,
Connecticut, its officers , agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively with United Broth-
erhood of Carpenters and Joiners of America, Local
Union No. 43, by refusing to furnish it with the informa-
tion requested by it in its letter to Respondent of 8 Feb-
ruary 1985.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively with the above-
named Union by furnishing it with the information re-
quested by it in its letter of 8 February 1985.
(b) Post at its facility in Hartford , Connecticut, copies
of the attached notice marked "Appendix A."8 Copies of
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
s 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-
said notice, on forms provided by the Officer in Charge
for Subregion 39, after being duly signed by Respond-
ent's representative , shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter , in conspicuous places , including
all places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered , defaced, or cov-
ered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT Is FURTHER ORDERED that the motion to correct the
transcript filed jointly by the General Counsel and Re-
spondent (and not objected to by the Charging Party) on
26 February 1986, with the appropriate corrections
granted.
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 A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
United Brotherhood of Carpenters and Joiners of Amer-
ica, Local Union No. 43, by failing and refusing to fur-
nish the said labor organization with the information re-
quested in its letter to us of 8 February 1985.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, furnish the Union with the in-
formation requested in its letter to us dated 8 February
1985.
DAVIS ACOUSTICAL CO., INC.