Ellsworth Sheet Metal, Inc.

National Labor Relations Board - Board Decisions

Sep 19, 1977

232 N.L.R.B. 109 (N.L.R.B. 1977)

ELLSWORTH SHEET METAL, INC.
Ellsworth Sheet Metal, Inc. and Sheet Metal Work-
ers' International Association, Local Union No. 83,
AFL-CIO. Case 3-CA-6195
September 19, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On June 21, 1976, the National Labor Relations
Board issued a Decision and Order' in the above-
entitled proceeding and found that Respondent,
Ellsworth Sheet Metal, Inc., had violated Section
8(a)(5) and (1) of the National Labor Relations Act,
as amended, by virtue of its actions in refusing to
furnish the Union, upon request, with information
necessary for it to determine whether or not
Respondent had been in compliance with its contrac-
tual obligations to contribute to certain fringe benefit
trust funds, and ordered Respondent to furnish said
information. Thereafter, on January 17, 1977, the
Board filed an application for Summary Entry of
Judgment enforcing its order in the U.S. Court of
Appeals for the Second Circuit, contending that
Respondent had waived all objections to the Board's
Order by not timely filing exceptions to the Adminis-
trative Law Judge's Decision. On February 22, 1977,
the court denied the Board's application "without
prejudice to the Board to consider the late filing of
an answer by respondent as an implicit motion to
extend time." 2
The Board, having decided not to seek review of
the court's ruling, will reconsider the above-men-
tioned Decision and Order in conformity with the
court's ruling which we respectfully recognize as
binding on us for the purpose of deciding this case.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has again considered the record and the
Administrative Law Judge's Decision dated April 2,
1976, in light of Respondent's exceptions thereto
pursuant to the order of the U.S. Court of Appeals
for the Second Circuit dated February 22, 1977, and
' 224 NLRB 1506.
2 Respondent's exceptions were initially rejected pursuant to Sec.
102.46(a) of the Board's Rules and Regulations, inasmuch as its letter to the
Board to which the exceptions were attached was mailed on Apnl 26. the
due date, and not received until April 27. I day after the last day for filing
exceptions under the above rule.
232 NLRB No. 30
has again decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge as
originally modified in our Decision and Order dated
June 21, 1976.
Respondent's exceptions, which are not addressed
specifically to the Administrative Law Judge's
Decision, contend essentially that the information
requested by the Union is either unnecessary for the
Union to police its agreement, or that there has been
an insufficient basis established on the record for
requiring its production.
With respect to the latter point, as the Administra-
tive Law Judge found, the General Counsel did
present evidence that the Union had received reports
that specific individuals for whom Respondent had
not made the required contributions were performing
covered work. Respondent, on the other hand, failed
to produce any evidence to rebut this testimony.
For the reasons expressed by the Administrative
Law Judge, as well as the fact that it would be
anomalous indeed to require the Union to establish
exactly the information it needs before we would
require Respondent to furnish it, we reject this
contention and find that sufficient basis has been
established for requiring production of the requested
information.
With respect to the necessity of the requested
information, we find, as did the Administrative Law
Judge, that the Board has established that similar
information, requested in the same context, is
relevant and necessary to determine whether appro-
priate payments are being made to funds established
by contract, and accordingly reject this contention as
lacking in merit. L & M Carpet Contractors, Inc., 218
NLRB 802, 804 (1975).3
Finally, with respect to Respondent's final conten-
tion that it had not refused to provide the requested
information, we find, again as did the Administrative
Law Judge, that Respondent's delay of 3 months
without even responding to the request for informa-
tion is sufficient, in itself, to establish the alleged
violation, and that moreover we find that, once the
request for information was received, it was incum-
bent on Respondent to react in some manner to the
request and that the Union was not required to do
more as a precondition to establishing its right to
have the information produced.
3 Respondent further contends, apparently. that it has no obligation to
provide information as to certain of the fringe benefit funds because
Respondent was not obligated to contribute to them. Ilowever, Respondent
adduced no evidence in support of this contention at the hearing.
Accordingly, we find this contention lacking in merit.
109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Ellsworth Sheet Metal, Inc., Fort Edward, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the Order herein
issued on June 21, 1976, at 224 NLRB 1506.
110