Doubarn Sheet Metal, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1979

243 N.L.R.B. 821 (N.L.R.B. 1979)

DOUBARN SHEET METAL. INC.
Doubarn Sheet Metal, Inc. and Local Union No. 75,
Sheet Metal Workers' International Association,
AFL-CIO. Case 31-CA-8124
July 31, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
Upon a charge filed on June 14, 1978, by Local
Union No. 75, Sheet Metal Workers' International
Association, AFL CIO, herein called the Union, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 31, issued
a complaint and notice of hearing on August II.
1978, against Doubarn Sheet Metal, Inc., herein Re-
spondent or Doubarn. Copies of the charge, com-
plaint, and notice of hearing were served on Respon-
dent.
The complaint alleged that Respondent had en-
gaged in and was engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the National Labor Relations
Act, as amended. The complaint alleged, in sub-
stance, that on or about June 1, 1978, and thereafter
Respondent refused to bargain with the Union in that
it refused to furnish it with certain requested informa-
tion regarding, in general, Respondent's relationship
with Stainless Steel, Inc., herein Stainless.
On October 25, 1978, the parties executed a stipula-
tion of facts in which the parties waived a hearing
before an administrative law judge and agreed to sub-
mnit the case to the Board for findings of facts, conclu-
sions of law, and Decision and Order, based on a
record consisting of the stipulation of the facts and
the exhibits attached thereto.
On January 10, 1979, the Board approved the
stipulation of the parties and ordered the case trans-
ferred to the Board, granting permission for the filing
of briefs. Thereafter, both the General Counsel and
Respondent filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the basis of the stipulation, the briefs, and
the entire record in this case, the Board makes the
following:
FINDINGS OF FACTS
I. JURISDICTION
Respondent is a corporation duly organized under
and existing by virtue of the laws of the State of Cali-
fornia, with an office and principal place of business
in Torrance, California, where it is engaged in the
manufacture of restaurant equipment. Annually, in
the course and conduct of its business operations. Re-
spondent sells and ships goods or services valued in
excess of $50.000 directly to customers located out-
side the State of California.
Respondent admits and we find that Respondent is
engaged in commerce and in operations affecting
commerce as defined in Section 2(6) and (7) of the
Act. We also find that it will effectuate the purposes
of the Act to assert jurisdiction herein.
11. IE L.ABOR ()R(iAN1ZAII()N
Respondent admits and we find that the Union is a
labor organization as defined in Section 2(5) of the
Act.
III. TIlE UNFAIR LABOR PRA(11( IS
A. Facts
The parties' stipulation shows these facts:
Respondent is now, and has been at all times mate-
rial herein, an employer-member of the Sheet Metal
and Air Conditioning National Contractors' Associ-
ation-Los Angeles Chapter, herein called the Asso-
ciation, for the purpose of bargaining collectively
with labor organizations. The Association is a volun-
tary association of employers, with its headquarters in
Los Angeles. California. which admits to membership
employers engaged in the sheet metal industry. The
Association exists, in part, for the purpose of negoti-
ating, executing, and administering multiemployer
collective-bargaining agreements on behalf of its em-
ployer-members with the collective-bargaining repre-
sentatives of their employees. The employer-members
of the Association constitute a single employer for the
purposes of the Act.
Since about 1957 Respondent has been a member
of the Association, and, by its membership applica-
tion to the Association, Respondent bound itself to
the collective-bargaining agreement with the Union
negotiated by the association on behalf of its em-
ployer-members.
On or about July 1, 1974, the Union and the Asso-
ciation, on behalf of its employers-members including
Respondent, entered into a collective-bargaining
agreement which is effective by its terms through
June 30, 1979, concerning the terms and conditions of
employment of the employees employed by the em-
ployer-members of the Association. All employees
employed by the employer-members of the Associ-
ation in the job classifications set forth in the contract
constitute a unit appropriate for the purposes of col-
243 NLRB No. 104
821
D)CISIONS OF NAII()NAL LABOR RELATIONS BOARD
lective bargaining, and at all times material herein the
Union has been the representative of those employees
for the purposes of collective bargaining.
Since at least 1971 Respondent has manufactured
sheet metal equipment and installed said equipment
at facilities operated by Sambo's Restaurant, Inc.,
herein called Sambo's. Also, since at least 1971 Re-
spondent's employees in the appropriate unit de-
scribed above have performed the work done by Re-
spondent for Sambo's.
Respondent's principal owners and officers are
Donald Barnfather and Donald L. Barnfather, the
son of Donald Barnfather. Donald L. Barnfather has
been and is now the vice president and the secretary-
treasurer for Respondent, having primary responsibil-
ity for the formulation, implementation, and control
of Respondent's labor relations policies.
At all times material herein Fred Griswold, a res-
taurant consultant and designer engaged in business
in Santa Barbara, California, has been a party to con-
tracts, agreements, and/or arrangements with Sam-
bo's, whereby he has acted as the agent for Sambo's
in contracting, subcontracting, and/or subletting
sheet metal equipment fabrication and installation
contracts to businesses engaged in the manufacture of
restaurant and sheet metal equipment, including Re-
spondent. Griswold, acting as the agent of Sambo's,
has the absolute discretion to place Sambo's orders
with any sheet metal contractor he deems appropri-
ate.
Stainless is a corporation duly organized and exist-
ing by virtue by the laws of the State of Kansas since
1974, with its principal place of business in Topeka,
Kansas, where it is engaged in the manufacture of
sheet metal equipment. The aforementioned Donald
L. Barnfather and Fred Griswold each own 50 per-
cent of the issued capital stock of Stainless and are
the sole and joint owners of Stainless.
Since at least on or about May 31, 1978, the Union
received information that Stainless used drawings and
blueprints prepared and provided to Stainless by Re-
spondent in the fabrication and installation of sheet
metal equipment for Sambo's. Further, the Union re-
ceived information that Stainless was performing
work for Sambo's, which work was previously per-
formed by employers engaged in the manufacture
and installation of sheet metal equipment, including
Respondent, and the amount of work which Respon-
dent performs for Sambo's has decreased since 1974.
Finally, the Union received information that employ-
ees of Stainless were performing sheet metal fabrica-
tion and installation work for Sambo's, which work
was previously performed by employees of Respon-
dent, and the Union was informed that all of the
sheet metal fabrication done by employees of Stain-
less was performed for Sambo's.
On or about May 31, 1978, the Union requested,
by letter, that Respondent furnish it with information
regarding, in general, the business relationships be-
tween Respondent and Stainless.'
In response to the Union's request, Respondent, by
letter dated July 26, 1978, provided the Union with
certain information.2 The information set forth in Re-
spondent's letter is the only information Respondent
has provided to the Union in response to its request
for information.
I The Union's letter reads as follows:
It has come to our attention that your Company is, or may be in
violation of the Standard Form of Union Agreement with this Union,
by reason of the operations by your Company or Its principals of an-
other company called Stainless Steel, Inc., or by the performance of
work which would otherwise be performed by our company. Specifi-
cally, we believe that there is or may be a violation of Articles 1. 11, Ill.
IV, V, VIII (Sections 2, 4 and 5), XL.ll, XLIII (Section 1), XLIV.
XLVIII, and possibly other articles.
Stainless Steel, Inc. is presently performing some services that were
previously performed by your Company, with your employees. In addi-
tion, we believe that there is a connection between your company and
Stainless Steel, Inc. either financially, or through management person-
nel, or both, and we believe that the object of creating Stainless Steel.
Inc. was to circumvent the provisions of the Union Agreement.
This letter constitutes a gnevance under Article X, Section I of the
Union Agreement. We wish to meet at your earliest convenience to
attempt to settle this grievance, and in order to determine whether in
fact there is a violation, we would appreciate your preparing answers to
the following questions:
1. What positions in Stainless Steel, Inc. are held by each officer, share-
holder, director, or other management representative of your com-
pany?
2. State the name of each person who has a function related to labor
relations for your Company and for Stainless Steel, Inc.
3. What customers of Stainless Steel, Inc. are now, or were formerly
customers of your Company?
4. What services, including clerical, administrative, bookkeeping, man-
agerial, drafting, pattern making, detailing, sketching, or other ser-
vices are performed for Stainless Steel, Inc. by or at your Company?
5. What supervisory function are performed by employees of your
Company over employees of Stainless Steel, Inc.?
6. What insurance or other benefits are shared in common by employ-
ees of your Company and employees of Stainless Steel, Inc.?
7. What work, if any. is being performed by your Company on Stainless
Steel, Inc.'s products?
Please submit the information within ten days of the date of this letter
so that we can commence the grievance procedure of the Union Agree-
ment.
2The Respondent's letter read, in part, as follows:
As we understand your grievance, it is your contention that Doubarn
has subcontracted or transferred work to Stainless Steel, Inc. for the
purpose of avoiding its obligations under its collective bargaining agree-
ment. That belief is incorrect.
As you may know, Stainless Steel, Inc. is owned jointly by Donald
Barnfather, Jr. and Fred Griswold. Both Mr. Barnfather and Fred Gris-
wold hold 50 percent of the outstanding shares of Stainless Steel, Inc.
Doubarn is a separate corporation that has no ownership interest in
Stainless Steel, Inc., nor does Stainless Steel, Inc. have any ownership
interest in Doubarn.
There is no work performed by Stainless Steel, Inc. on any of Dou-
barn's products. Further, Doubarn is not performing any work on any
Stainless Steel, Inc. products.
We also inform you that Doubarn has no control over its customers
that would enable it to direct its customers to place business with either
Doubarn or Stainless Steel, Inc.
X822
DOUBARN SHEET METAL, INC.
B. Discussion
The General Counsel contends that the informa-
tion requested by the Union was relevant and neces-
sary to the Union's performance of its representative
obligations. According to the General Counsel, Re-
spondent has an obligation which it did not meet in
its letter of July 26, 1978, to supply the Union with
the requested information. Therefore, the General
Counsel submits that Respondent should be found to
have violated Section 8(a)(5) and (1) of the Act by
refusing to supply the requested information.
Respondent contends that it was under no obliga-
tion to supply the information requested by the
Union. Respondent alleges that the information
sought by the Union is irrelevant, and that Respon-
dent has, in effect, answered all relevant inquiries.
Further, Respondent argues that it and Stainless are
separate entities and therefore due process requires
that Stainless be made a party to this case. Finally,
Respondent states that the information sought by the
Union is unavailable.
It has long been held that an employer has an obli-
gation, as part of its duty to bargain in good faith, to
provide information needed by a bargaining repre-
sentative for the proper performance of its duties.3
This obligation to furnish information extends be-
yond the period of contract negotiations and applies
to labor management relations during the term of an
agreement, including the evaluation of grievances.4
Further, an employer cannot refuse to furnish re-
quested information on the basis that the bargaining
representative seeks information regarding matters
outside the scope of the bargaining unit represented
by the union.5 In regard to this employer obligation
to supply information, the following language from
Ohio Power Co.6 sets forth the standards of relevance
to be applied:
Where the information sought covers the
terms and conditions of employment within the
bargaining unit, thus involving the core of the
employer-employee relationship, the standard of
relevance is very broad, and no specific showing
is required; but where the request is for informa-
tion with respect to matters occurring outside the
unit, the standard is somewhat narrower (as
where the precipitating issue or conduct is the
subcontracting of work performable by employ-
ees within the appropriate unit) and relevance is
required to be somewhat more precise.... The
N.LRB. v. Truitt Manufacturing Company, 351 U.S. 149 (1956).
'N. L R.B. v. Acme Industrial Co., 385 U.S. 432 (1967).
' N.L R.B. v. Curtiss-Wright Corporation, Wright Aeronautical Division,
347 F.2d 61 (3d Cir. 1965).
6216 NLRB 987, 991 (1975).
obligation is not unlimited. Thus where the in-
formation is plainly irrelevant to any dispute
there is no duty to provide it.
It was also noted in Ohio Power Co. that the infor-
mation sought need not be totally dispositive of a
grievance or a dispute. Rather, a union is entitled to
its requested information in order to determine
whether it should exercise its representative function
by filing a grievance or bargaining about a dispute.
Here the Union sought to obtain information re-
garding the business relationship between Respon-
dent and Stainless. Thus the Union's request related
to matters occurring outside the bargaining unit.
Items 1, 2, 4, 5, and 6 of the Union's request are
directed, in general, towards obtaining information as
to whether Respondent and Stainless are a single em-
ployer. Items 3 and 7 of the Union's request seek
information tending to establish whether Respondent
has assigned or contracted work to Stainless.
In previous cases, where a union has shown the
reasonable or probable relevance of information re-
garding the employer's relationship with another em-
ployer, the Board has held that the employer is obli-
gated to furnish the information requested.' In this
case the Union, in its request for information, cited
certain contractual provisions which it contended
were or may have been violated by Respondent.' Sut-
ficient evidence establishing a single-employer rela-
tionship between Respondent and Stainless would
make tenable an assertion by the Union that Respon-
dent was not meeting certain contractual obligations,
such as the provision requiring the payment of the
wage scale provided in the contract (art. VIII) or the
union-security clause (art. V). Evidence demonstrat-
ing that former Doubarn customers were now utiliz-
ing Stainless or that Doubarn was working with
Stainless products would lend some credence to a
union contention that Doubarn (even if not a single
employer with Stainless), had violated certain con-
tractual provisions, such as the provisions on subcon-
tracting (art. II) or the industry protection clause (art.
XLIV).
We do not and need not decide whether the
Union's grievance regarding possible violations of the
contract by Respondent will be found meritorious.
Nor do we decide that the information sought will
totally dispose of the Union's grievance. Rather, the
Union, with its obligation to police the contract on
behalf of its members, 9 has established a reasonable
and probable relevance of the requested information
7 Fawcett Printing Corporation. 210 NLRB 964 (1973). HerA Elevator
Maintenance, Inc., 197 NLRB 96 (1972). enfd 471 F.2d 647 (2d Cri 1973)
s Appendix A, omitted from publication., sets forth those contractual pro-
visions that the Union alleges were or may have been violated h Respon-
dent.
9 See Ohio Power Co, rupra
823
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by showing that the information could make tenable
its contentions as to violations of the contract by Re-
spondent. The Union has adequately stated what in-
formation it seeks and the purpose for which it is to
be used. Accordingly, the Union, having made a
showing of relevance for the information sought, is
entitled to receive that information.
Contrary to Respondent's argument, cases such as
Adams Insulation'° and Union-Tribune" Publishing
Co. are inapposite. In Adams, a union made a blanket
request to examine "all books and records" of a com-
pany that it contended was a single employer with the
company with which it had a collective-bargaining
agreement. In Adams, as found by the Board, the
union's requests lacked both specificity and clarity as
to the information sought, and the employer "could
not have been aware of the intent and purpose of the
union's request." Here the Union has requested spe-
cific information from Doubarn regarding Doubarn's
relationship with Stainless,' 2 and it has cited specific
contractual provisions that certain information, in re-
sponse to its inquiries, might tend to show are being
violated.
In Union-Tribune, the Board, with court approval,
found no violation of Section 8(a)(5) where a union
requested an employer to supply it with information
regarding trainees who were not unit employees but
were being trained to perform unit work in the event
of a strike. The Board upheld the employer's refusal
to supply the information because the information
sought could have "no rational bearing on the chal-
lenge posed by the grievance." Thus, the Board found
that the union had made absolutely no showing of
relevance regarding the information sought.
In this case we have found that the Union has dem-
onstrated the reasonable and probable relevance of
the requested information in regard to its contentions
as to possible contractual violations.' It is not neces-
'O Rodney and Judith Adams, d/hba Adams Insulation Company. 219 NLRB
211 (1975).
' 220 NLRB 1226 (1975), enfd. 548 F.2d 863 (9th Cir. 1977).
12 The Union herein is clearly seeking information within the purview of
Doubarn's knowledge and has not requested to examine all books and rec-
ords of Stainless.
13 Respondent contends in its brief to the Board that the Union's conten-
tions regarding contractual violations amount to mere speculation or suspi-
cion. We do not agree. The parties here entered a stipulation stating that the
Union had "received information" regarding possible contractual violations.
Nothing contained within the stipulation challenges the bona fides of the
Union's information.
In Curtiss-Wright Corporation, 145 NLRB 152, 157 (1963), the Board
found that a union had "good cause" to challenge a company's handling of
nonunit administrative employees and was therefore entitled to certain infor-
mation about those employees. In N.L.R.B. v. Rockwell-Standard Corpora-
tion, 410 F.2d 953 (6th Cir. 1969), the court found that a union was entitled
to information about nonunit employees because the union had "reasonable
grounds" to question a company's handling of nonunit work. Whether the
initial burden as defined as one of showing "good cause" or "reasonable
grounds," the facts set forth in the stipulation establish that the Union has
met that burden.
sary, as Respondent appears to suggest, that the
Union demonstrate actual instances of contractual
violations before Respondent must supply informa-
tion. Indeed, if the Union had sufficient information
to prove contractual violations, it would not need to
request information from Respondent. Here, based
on the admitted connections between Doubarn and
Stainless, the contractual provisions cited by the
Union, and the information received by the Union as
to the work being performed by Stainless the Union
has made an initial showing that the information
sought is relevant and necessary for its evaluation and
pursuit of its grievance.
We further find that Respondent's other defenses to
the 8(a)(5) allegation are without merit. Respondent
argues that Stainless is a separate entity, and that due
process requires that it be made a party to these pro-
ceedings. As the information sought concerns Re-
spondent's relationship with Stainless and should be
within the purview of Respondent's knowledge, the
request is properly directed to Respondent. Our Or-
der requires no action by Stainless, and it is not a
necessary party to this case.'4
Respondent also states that it has answered the
Union's inquiries, and it suggests that further infor-
mation is unavailable. However, as the Union has
shown the relevance of the information sought, it is
entitled to the specific information requested and
need not accept Respondent's conclusionary state-
ments.'5 Further, based on the stipulation before us,
Respondent has in no way demonstrated that the in-
formation sought by the Union is unavailable. 6
On the basis of the foregoing findings, we conclude
that the information requested by the Union was rel-
evant and essential to the performance of its obliga-
tions as the bargaining representative of the employ-
ees of Respondent. It is further found that
Respondent, by failing and refusing to provide the
information requested by the Union, violated and is
violating Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Doubarn Sheet Metal, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
This is not to say that the stipulation establishes that the Union received
information that was accurate and correct. Rather, it establishes that the
Union received certain information-not shown to be in accurate-warrant-
ing further investigation by the Union as to possible violations of the con-
tract. Under these circumstances, Respondent, having entered into the stipu-
lation, cannot now contend-absent support in the stipulation--that the
information received by the Union was a product of bad faith or speculation.
4 See Herk Elevator, supra.
'l Ibid
16 In N L.R B v. Rockwell-Standard Corporation, supra, the court noted
that if a party cannot furnish some of the information requested it must
supply all that it has and state under oath that it cannot furnish the rest.
Here Respondent clearly did not do this.
824
DOUBARN SHEET METAL. INC.
2. Local Union No. 75, Sheet Metal Workers' In-
ternational Association, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. By failing and refusing to provide the Union
with the information it requested in its letter to Re-
spondent dated May 31, 1978, Respondent has en-
gaged 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 are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that by the aforementioned conduct
Respondent has violated Section 8(a)(5) and (1) of the
Act, we shall order it to cease and desist from engag-
ing in such conduct in the future and take certain
affirmative action designed to effectuate the policies
of the Act.
As we have found that Respondent refused to give
to the Union relevant information which it requested
for the purposes of enabling it to evaluate and pursue
its grievance, we shall order that Respondent furnish
the Union with the information it requested concern-
ing Respondent's relationship with another company.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Dou-
barn Sheet Metal, Inc., Torrance, California, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local
Union No. 75, Sheet Metal Workers' International
Association, AFL-CIO, by refusing to furnish it with
the information requested by it in its letter to Respon-
dent dated May 31, 1978.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effecuate the policies of the Act:
(a) Upon request, bargain collectively with Local
Union No. 75, Sheet Metal Workers' International
Association, AFL-CIO, by furnishing the said labor
organization with the information it requested by its
letter dated May 31, 1978.
(b) Post at its Torrance. California. place of busi-
ness copies of the attached notice marked "Appendix
B."'7 Copies of said notice, on forms provided by the
Regional Director for Region 31. after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order.
what steps Respondent has taken to comply herewith.
ir In the event that this Order is enforced by a Judgment of a United
States court of appeals. the words in the notice reading "Posted bh Order of
the National Labor Relations Board" shall read "Posted Pursuant io a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
APPENDIX B
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL. NOT refuse to bargain collectively
with Local Union No. 75, Sheet Metal Workers'
International Association, AFL-CIO, by failing
and refusing to furnish the said labor organiza-
tion with the information requested in the
Union's letter to us dated May 31, 1978.
WE WIl.L NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL, upon request, furnish Local Union
No. 75, Sheet Metal Workers' International As-
sociation, AFL-CIO, with the information re-
quested in the Union's letter to us dated May 31,
1978.
DOUBARN SHEET METAL.. INC.
825