Ellsworth Sheet Metal, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1976

224 N.L.R.B. 1506 (N.L.R.B. 1976)

1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ellsworth Sheet Metal , Inc and Sheet Metal Work-
ers' International Association , Local Union No 83,
AFL-CIO Case 3-CA-6195
June 21, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On April 2, 1976, Administrative Law Judge Rich-
ard L Denison issued the attached Decision in this
proceeding Thereafter, the Charging Party filed ex-
ceptions
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
The Board has considered the record and the at-
tached Decision in light of the exceptions and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order to the extent consistent
herewith I
(a) Furnish to Sheet Metal Workers' International
Association, Local Union No 83, AFL-CIO, or its
accountants, for examination, its payroll records,
cash disbursements journal, general ledger and gen-
eral journal, Federal and state payroll reporting
forms, and annual audit reports prepared by its
workmen's compensation insurance carrier, as re-
quested on June 17, 1975, for the period from Janu-
ary 1, 1974, to the date of such examination
(b) Post at its premises at Fort Edward, New
York, copies of the attached notice marked "Appen-
dix " 2 Copies of said notice, on forms provided by
the Regional Director for Region 3, after being duly
signed by an authorized representative of Respon-
dent, 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material
(c) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Ellsworth Sheet Metal, Inc, Fort Edward, New
York, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Failing and refusing to furnish Sheet Metal
Workers' International Association, Local Union
No 83, AFL-CIO, or its accountants and agents, for
examination, its payroll records, cash disbursements
journal, general ledger and general journal, Federal
and state payroll reporting forms, and annual audit
reports prepared by its workmen's compensation in-
surance carrier, as requested on June 17, 1975, for
the period from January 1, 1974, to the date of such
examination
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed them under Section 7 of the Act,
except to the extent that such rights may be affected
by an agreement requiring membership in a labor
organization as a condition of employment, as au-
thorized by Section 8(a)(3) of the Act
2 Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act
i We find merit in the Charging Party s exceptions to the Administrative
Law Judges use of May 1 1975 as the beginning date of the period for
which Respondent must produce the requested information Since the Ad
ministrative Law Judge s findings clearly establish that the Union was enti
tied to receive the information deemed relevant for a period commencing
January 1 1974 it is this date and not the former which is properly applica
ble Thus the Administrative Law Judge s remedy is hereby amended to
reflect this change and his recommended Order and notice are modified
accordingly
2 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 by Order
of the National Labor Relations Board shall read Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL furnish to Sheet Metal Workers' In-
ternational Association, Local Union No 83,
AFL-CIO, or its accountants, for examination,
our payroll records, cash disbursements journal,
general ledger and general journal, Federal and
state payroll reporting forms, and annual audit
reports prepared by our workmen's compensa-
tion insurance carrier, for the period from Janu-
ary 1, 1974, to the date of such examination
WE WILL NOT in any like or related manner
224 NLRB No 199
ELLSWORTH SHEET METAL, INC
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed under
Section 7 of the Act, except to the extent that
such rights may be affected by an agreement re-
quiring membership in a labor organization as a
condition of employment, as authorized by Sec-
tion 8(a)(3) of the Act
ELLSWORTH SHEET METAL, INC
DECISION
STATEMENT OF THE CASE
RICHARD L DENISON, Administrative Law Judge This
case was heard at Albany, New York, on November 25,
1975 The charge was filed by Sheet Metal Workers' Inter-
national Association, Local Union No 83, AFL-CIO,' on
August 25, 1975 The complaint, issued on October 10,
1975, alleges that Ellsworth Sheet Metal, Inc,2 violated
Section 8(a)(1) and (5) of the Act by refusing to bargain
with the Union, in that Respondent has refused at all times
after on or about May 23, 1975, to furnish the Union with
requested information to determine whether appropriate
payments are being made by Respondent into the Union's
fringe benefit trust funds Respondent s answer, dated Oc-
tober 15, 1975, denies having committed the unfair labor
practices alleged in the complaint All parties were afford-
ed a full opportunity to participate in the hearing and to
argue orally The General Counsel and the Charging Party
filed briefs, and the Employer filed a letter of position,
each of which has been carefully considered 3 Upon the
entire record and from my observation of the witnesses, I
make the following
FINDINGS OF FACT
I JURISDICTION
As admitted in Respondent's answer, I find that Respon-
dent is, and has been at all times material herein, a New
York corporation maintaining its principal office, place of
business, and plant at Fort Edward, New York, where it is
engaged in the business of fabricating and installing sheet
metal and related products In the course and conduct of
its business operations, Respondent annually purchases
and receives goods and materials valued in excess of
$50,000 directly from points outside the State of New
York, and annually manufactures, sells, and distributes
products valued in excess of $50,000 directly to points out-
side the State of New York I find that Respondent is now
and has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2) (6),
and (7) of the Act
Also referred to herein as either the Charging Party or the Union
2 Also referred to herein as either the Respondent or the Company
3 Counsel for General Counsels motion to correct transcript which is
unopposed is granted
II LABOR ORGANIZATION
1507
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5) of
the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
The basic facts which give rise to this proceeding are not
in dispute 4 Henry Landau, business manager of the Union
and fund director and manager of the Union's pension,
insurance, and apprenticeship training funds, credibly tes-
tified that for a period of from 15 to 20 years the Union has
had a collective-bargaining relationship with the Respon-
dent covering its journeyman and apprentice sheet metal
workers The collective-bargaining agreement in effect as
of the time of the events in this matter, and binding on
Respondent through the Capitol District Sheet Metal,
Roofing and Air Conditioning Contractors Association,
Inc, effective May 1, 1970, through June 30, 1973, remains
in effect by virtue of an automatic renewal clause Article
VIII, sections 1C through 1G, requires Respondent to con-
tribute specified amounts to the Union's insurance, pen-
sion, vacation, and apprenticeship funds administered by a
separate point board of trustees Failure by an employer to
pay the required amounts to these funds specifically consti-
tutes a violation of the agreement which entitles the Union
to invoke the same enforcement procedures applicable in
the case of delinquent wages, and further provides for spe-
cific monetary penalties In the past Respondent has made
payments on behalf of its employees to the various union
funds as required by the agreement, but has made no pay
ment since April 1975 5 Consequently, when it was report-
ed to Landau by Business Representative James McCabe
and by employee members that Ellsworth had sheet metal
workers on a job in the Plattsburgh, New York, area, on
May 23, Landau, as president and business manager for
the Union, wrote the following letter which Respondent
received on May 27
It has come to my attention that negotiated contri-
butions to the following fringe benefit funds are not
being received as required by our Labor Agreement,
for at least 3 of your employees working in the Platts-
burgh, New York area, whose names we believe to be
Roselle, Hayes, and Plumber The latter 2 men are
working in the old Sealtest building leased by you
S M W Local #83 Insurance Fund
S M W Local #83 Pension Fund
S M W Local #83 Joint Apprenticeship Training
Trust Fund
S M W Local #83 Industry Fund
S M W National Industry Fund
S M W National Training Fund
S M W National Pension Fund
SASMI
I hereby notify you of your delinquency pursuant to
Article VIII of the Labor Agreement and demand that
you make full payment of all delinquent amounts to
4 Respondent rested without presenting any evidence
5 All dates are in 1975 unless otherwise specified
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Funds by June 2, 1975 If such payments are not
made, and records to verify the sufficiency of the pay-
ments supplied, you will be charges [sic] with all con
tractual penalties provided for in cases of delinquency,
and this Union will pursue all remedies to it under
Article VIII and otherwise
If you have information indicating that you do not
owe contributions for these men, such information
must be supplied to us within the time period stipulat
ed Please contact me immediately to bring this matter
to its' proper conclusion
Also on May 23, in his capacity as fund director and
manager, Landau sent the following letter to Respondent,
also received on May 27
Contributions to this Fund are not being received,
as required by your Labor Agreement with Sheet Met-
al Workers Local 83, for at least three of your employ-
ees working in the Plattsburgh, New York area, whose
names we believe to be Roselle, Hayes, and Plumber
The latter two men are working in the old Sealtest
Building leased to you
This Fund hereby demands that you make full pay-
ment of all delinquent amounts by June 2, 1975 If we
have not received such payment, together with records
to enable us to verify the sufficiency thereof, you will
be charged with all contractual penalties provided for
in cases of delinquency, and this Fund will pursue all
legal remedies to collect the amounts due
If you have information indicating that you do not
owe contributions for these men, such information
must be supplied to this Fund within the time period
stipulated above Please contact us immediately
When no reply to either of the above communications
was received, Landau, in his capacity as fund director and
manager, sent another letter, dated June 3, which Respon-
dent received on June 4, advising Respondent that the ac-
countants for the Union's pension fund desired to inspect
Respondent's books and records, to wit
You are advised that the accounting firm of Jen
nings & Birchenough, accountants to the Sheet Metal
Workers' Local Union #83 Pension Fund, will be
calling at your establishment for the purpose of check-
ing your books and records There is a question con-
cerning the accuracy and the completeness of your
reports to the Pension Fund In view of the interest
and the rights of Pension Fund Members in their
eventual Pension rights this check and investigation is
deemed necessary by the Trustees
Will you please advise the date and time when rep-
resentatives of Jennings & Birchenough, C P A 's will
be accorded the opportunity to make such a check It
is necessary that they make a report to the Trustees
not later than July 1, 1975
Thereafter the funds' accountants, the firm of Jennings
& Birchenough, sent the following letter, dated June 17, to
Respondent, which was received on June 19
In accordance with the letter referred above, we
have been requested to contact you to confirm a date
for us to arrive at your place of business We would
ask you to advise us if you would choose a starting
date from the dates of June 24, 25, or 26, 1975 We are
not able to fix an exact time for completing this as-
signment, but our goal is to perform our tasks in an
effective time span and with as little inconvenience to
you as possible
To promote efficiency in our work assignment, we
will outline our program We will use the period of
January 1, 1974 through June 1975 as an initial test
period to check the accuracy and completeness of
your monthly reports to the Local 83 Pension Fund
In order to make such a check, we request that you
have ready and available for our examination these
books and records
(a) All individual employee's payroll cards and week-
ly payroll journal summary forms or worksheets
(b) Cash Disbursements Journal or similar book of
original entry
(c) The Company s General Ledger and General
Journal
(d) Payroll reporting forms-Federal Forms 941, 940
& W 2s, New York State Unemployment Forms IA
5
(e) Annual audit reports prepared by Workmen s
Compensation Ins carrier
(f) U S Corporation Income Tax returns (Form 1120
or 1120S) which include the initial test period
We solicit your cooperation and we plan to have 2
or 3 staff people on this job to complete it as quickly
as possible
Subsequently, in July or August, Landau, as director and
manager of the fund, sent Respondent a form delinquency
letter threatening to invoke the penalty provisions of the
contract
Your fringe benefit reports are overdue
If this matter is not cleared up within five days,
upon receipt of this correspondence, the trustees have
mandated that appropriate action be taken
If we are forced to take such action, your firm will
be required to furnish a $5,000 Surety Bond prior to
resuming normal relations
Your responsibility is to make the required pay-
ments by the 15th of the following month We expect
you to comply in the future
No reply to Landau's letters, in either of his capacities,
or that of the funds accountants, was ever received until
Landau received the following letter, dated September 4,
from Daniel J Smitas, Respondent's counsel
This is in reply to your letter of August 26, 1975 to
Ellsworth Sheet Metal, Inc regarding the fringe bene-
fit reports which are overdue Please be advised that
Ellsworth Sheet Metal, Inc has not had an employee
employed since June 1, 1975 except for Gary Ells-
worth
I hereby request your opinion as to whether or not
Gary Ellsworth is considered by your fund to be a
ELLSWORTH SHEET METAL, INC 1509
covered employee If so, prompt remittance will be
made by Ellsworth Sheet Metal, Inc
An expeditious reply to my request would be appreci-
ated since we do not want to be in default of any
conditions of any agreement which may exist between
Ellsworth Sheet Metal, Inc, and Sheet Metal Workers'
International Association, Local Union No 83
On September 11 Landau sent the following reply which
was received on September 17
In answer to your letter dated September 4, 1975
concerning the overdue fringe benefits of Ellsworth
Sheet Metal, Inc, please be advised, fringe benefits
must be paid on all persons employed by an affiliated
employer performing any work outlined in Article I of
the Standard Form of Union Agreement
It will be noted that Smitas' letter, Respondent's only
communication concerning this matter, was written only
after Respondent had received on August 27 the charges
filed by the Union on August 25 The information request-
ed in the Union's May 23 letters and in Jennings &
Birchenough's letter of June 17 was never received In fact,
no information of any kind in any form was ever provided
John Jennings, a certified public accountant and partner in
the firm of Jennings & Birchenough, testified that he has
been the funds' accountant for approximately 15 years
Jennings, who was the author of the June 17 letter to Re-
spondent from Jennings & Birchenough, testified concern-
ing the relevance of the items he requested in the June 17
letter to a determination of whether or not Respondent had
been deficient in his obligation to report and make contri-
butions to the funds In substance Jennings testified that in
order to check for accuracy and completeness it was essen-
tial to examine all employee payroll cards, the weekly pay-
roll Journal, the cash disbursements journal, and the gener
al ledger In addition, as a means of verifying the accuracy
of the information found in these records, he would need
to examine any Federal and state payroll reporting forms,
and the annual audit reports prepared by the Respondent's
workmen's compensation insurance carrier which would
identify employees performing sheet metal work Finally,
Jennings testified that an examination of the Employer's
corporate income tax returns would be useful as a check to
insure the accuracy of any analysis of the corporate rec-
ords
IV DISCUSSION AND CONCLUSION
It is firmly established that Section 8(a)(5) of the Act
obligates an employer to provide, on the request of its em-
ployees' collective-bargaining agent, all information rele-
vant to the proper performance of that agent's functions,
including information needed by the Union to police and
administer the collective-bargaining agreement This right
arises by operation of the statute upon an appropriate re-
quest and limited only by considerations of relevancy
Stahl Specialty Company 175 NLRB 129, 130 (1969)
Moreover, in Cowles Communications Inc, 172 NLRB
1909 (1968), the Board said
The law is clear and well-settled that "wage and
related information pertaining to employees in the
bargaining unit should, upon request, be made avail-
able to the bargaining agent without regard to its im-
mediate relationship to the negotiation or administra-
tion of the collective-bargaining agreement " As such
information concerns the core of the employer-em-
ployee relationship, it is presumptively relevant and 'a
union is not required to show the precise relevance of
it, unless effective employer rebuttal comes forth
" As the court stated in Yawman & Erbe, "it is
virtually impossible to tell in advance whether the re-
quested data will be relevant except in those infre-
quent instances in which the inquiry is patently out-
side the bargaining issues "
Respondent's contention that its failure to respond to
the letters from the Union and its accountant does not
constitute a refusal to supply the requested information is
clearly without merit The uncontroverted evidence in the
record clearly shows that Respondent never furnished any
of the information requested nor did it offer to do so in any
form The fact that a formal refusal was never supplied is
no excuse Moreover, Respondent's delay and inattention
to such a serious matter relating to its collective-bargaining
obligation might itself, if alleged, warrant a conclusion that
it violated the Act DePalma Printing Co, 204 NLRB 31
(1973) Respondent's argument that the Union is in some
way obliged to institute a suit for breach of contract or to
resort to the grievance and arbitration procedure of the
collective-bargaining agreement in order to obtain redress
has likewise been rejected In L & M Carpet Contractors,
Inc 218 NLRB 802 (1975), the Board adopted, without
modification, the Administrative Law Judge's Decision in
which he acknowledged that a right of action in a state
court might exist in that case, but did not find the fact that
this course of action was not pursued to be any impedi-
ment to his decision of the issue presented Likewise in
NLRB v Acme Industrial Co, 385 U S 432 (1967), the
Supreme Court specifically rejected the argument that in
refusal to furnish information cases the union must utilize
the grievance and arbitration machinery in the contract
In reversing the Court of Appeals for the Seventh Circuit,
and in adopting the Board's reasoning, the Court said at
438
Far from intruding upon the preserve of the arbitra-
tor, the Board's action was in aid of the arbitral pro-
cess Arbitration can function properly only if the
grievance procedures leading to it can sift out unmeri-
torious claims For if all claims originally initiated as
grievances had to be processed through to arbitration,
the system would be woefully overburdened Yet, that
is precisely what the respondent's restrictive view
would require It would force the union to take a
grievance all the way through to arbitration without
providing the opportunity to evaluate the merits of the
claim The expense of arbitration might be placed
upon the union only for it to learn that the machines
had been relegated to the junk heap Nothing in feder-
al labor law requires such a result
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent also argues that the General Counsel had
not proved that there were any employees doing unit work
for the Employer, and therefore no basis for the Union s
request exists, and finally it is contended that Respondent
ought not to have to turn the requested records over for
inspection by the funds' accountant, since employer trus-
tees of the funds are competitors of Respondent I cannot
agree Firstly, the General Counsel offered evidence that
the request for information followed only after it was re-
ported to Landau that specific individuals were performing
sheet metal work on a specific job serviced by Respondent
Landau's initial letter of May 23 explicitly stated the basis
for the Union's request Not a shred of evidence was of-
fered by Respondent to rebut this testimony Instead, Re-
spondent chose to rest without presenting any evidence
The contention that Respondent should not be compelled
to turn any of the information requested over to the funds'
accountant simply because of certain of Respondent's
competitors are employer trustees of the funds is equally
without merit As the General Counsel points out, an ac-
ceptance of Respondent's reasoning here would result in
the trustee of funds established under Section 302 of the
Labor Management Relations Act, as amended, never
being able to obtain adequate information to insure the
proper administration of such funds, whenever this same
objection could be raised
I find the case of L & M Carpet Contractors Inc 218
NLRB 802 (1975), cited by the General Counsel in his con-
cise and well-written brief, to be factually similar and con-
trolling here In that case, as in the instant case, the union
requested an audit of the books of an employer in order to
ascertain whether the appropriate payments were being
made to the funds Although payroll records were being
furnished, the cash disbursement records and general ledg-
er were not In finding a violation of Section 8(a)(1) and
(5), the Board adopted the Administrative Law Judge's De
cision finding these records were relevant and necessary to
a determination of whether appropriate payments were
being made Almost identical circumstances exist in the
instant case The result must be the same I therefore find
that the Respondent violated Section 8(a)(1) and (5) of the
Act by failing and refusing to furnish to the Union for
inspection by its certified public accountant, items (a), (b),
(c), (d), and (e) as set forth in the June 17 request by the
funds' accountants, Jennings & Birchenough However, I
do not find item (f) of the June 17 request, i e the
Respondent's corporate income tax returns, to be of suffi-
cient relevancy to require their production since Jennings
testified in substance that these returns served only to fur-
ther corroborate or check what is already revealed by the
actual corporate records themselves, unlike the Federal
and state payroll reporting forms and workmen's compen-
sation insurance carrier reports which might identify by
name employees performing sheet metal work
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act
2 The Union is a labor organization within the meaning
of Section 2(5) of the Act
3 All journeyman and apprentice sheet metal workers
employed by Respondent at its Fort Edward, New York,
plant, excluding all office clerical employees, all profes-
sional employees, and all guards and supervisors as defined
in the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act
4 At all times material herein, the Union has been the
exclusive collective-bargainmg representative of the em-
ployees described above in paragraph 3, within the mean-
ing of Section 9(a) of the Act
5 By failing and refusing, upon request, to furnish its
payroll records, cash disbursements journal, general ledger
and general journal, state and Federal payroll reporting
forms, and annual workmen's compensation insurance ear-
ner reports to the Union and its accountant for examina-
tion, as requested in Jennings & Birchenough's letter of
June 17, in order to determine the accuracy and complete-
ness of Respondent's reports and payments to the Union's
pension, vacation, and apprenticeship funds, Respondent
violated Section 8(a)(5) and (1) of the Act
6 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
7 Respondent has not violated the Act in any respect
other than that specifically found
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order that Re-
spondent cease and desist therefrom and that it take cer-
tain affirmative action designed to effectuate the policies of
the Act Since Respondent has not made any payments to
the Union s various fringe benefit funds since April 1975, I
shall order that Respondent make available for examina
tion by the Union and its certified public accountant for
the funds the records described in items (a), (b), (c), (d),
and (e) of the request of June 17, 1975, for the period May
1, 1975, up to the date of the examination
[Recommended Order omitted from publication