Employing Plasterers' Assn. of Allegheny County

National Labor Relations Board - Board Decisions

Feb 13, 1970

181 N.L.R.B. 142 (N.L.R.B. 1970)

142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employing Plasterers' Association of Allegheny
County, Pa.; Siciliano Brothers , Inc.; and Easley
& Rivers Plastering Company. Inc. and
International Union of Wood , Wire and Metal
Lathers, Local No. 33, AFL-CIO. Case
6-CA-4468
February 13, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On September 3, 1969, Trial Examiner Louis
Libbin issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondents filed
exceptions to the Decision and a supporting brief,
and a request for oral argument; and the General
Counsel filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case,' and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondents, Siciliano
Brothers, Inc., and Easley & Rivers Plastering
Company, Inc., Pittsburgh, Pennsylvania, their
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
Wood , Wire and Metal Lathers, Local No. 33, AFL-CIO,
herein called the Union or the Lathers Local , the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 6 (Pittsburgh,
Pennsylvania ), issued a complaint , dated May 29, 1969,
against Employing Plasterers ' Association of Allegheny
County, Pennsylvania , herein called Respondent
Association , Siciliano Brothers , Inc , herein called
Respondent Siciliano , and Easley & Rivers Plastering
Company, Inc., herein called Respondent Easley, and
herein collectively called Respondents . The complaint
alleges, in substance , and Respondents ' duly filed answer
denies, that Respondents violated Section 8(a)(1) and (5)
of the Act by refusing to provide the Union with
requested information and data during the term of a
current collective-bargaining agreement between the
parties
Pursuant to due notice , a hearing was held before me at
Pittsburgh , Pennsylvania , on June 24 and 25, 1969. All
parties were represented at the hearing and were given full
opportunity to participate therein . On July 28, 1969, the
General Counsel and the Respondents filed briefs which I
have fully considered . For the reasons hereinafter
indicated , I find that Respondents violated Section 8(a)(1)
and (5 ) of the Act as alleged in the complaint.
Upon the entire record in the case,' and from my
observation of the demeanor of the witnesses while
testifying under oath , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Respondent Association is an organization with
principal offices in Monroeville, Pennsylvania, which
negotiates and executes labor agreements on a
multiemployer basis on behalf of its members During the
12-month period preceding the issuance of the instant
complaint, members of Respondent Association received
goods, valued in excess of $50,000, directly from points
outside the Commonwealth of Pennsylvania for use on
jobsites within said Commonwealth.
Respondents Siciliano and Easley, Pennsylvania
corporations with their principal offices in Pittsburgh and
Monroeville, Pennsylvania, respectively, are members of
Respondent Association and are engaged as plastering
contractors in the construction industry. During the
12-month period preceding the issuance of the instant
complaint, they each purchased goods and materials,
valued in excess of $50,000, directly from points outside
the Commonwealth of Pennsylvania for use on
construction projects located within said Commonwealth.
Upon the above admitted facts, I find, as Respondents
further admit; that Respondents, individually and jointly,
are engaged in commerce within the meaning of Section
2(6) and (7) of the Act
'Respondents ' request for oral argument is denied , as, in our opinion,
the record and the exceptions and briefs adequately present the issues and
the positions of the parties
'In the second substantive paragraph of the notice , change "their
employees" to "our employees "
TRIAL EXAMINER'S DECISION
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, the record
shows, and I find, that International Union of Wood,
Wire and Metal Lathers, Local 33, AFL-CIO, the Union
herein , is a labor organization within the meaning of
Section 2(5) of the Act.
STATEMENT OF THE CASE
Louis LIBBIN, Trial Examiner Upon charges filed on
January 14 and May 20, 1969, by International Union of ' Certain errors in the transcript have been noted and corrected.
181 NLRB No. 24
EMPLOYING PLASTERERS' ASSN. OF ALLEGHENY COUNTY, PA 143
III. THE UNFAIR LABOR PRACTICES
A Introduction; The Issues
The Union and Respondent Association are parties to a
collective-bargaining agreement which was executed on
August 22, 1967, effective from June I, 1967, to May 31,
1970. Respondents Siciliano and Easley are members of
the Association and thereby bound to the contract.' With
particular reference to the instant case, the contract
provides that beginning with jobs awarded to Respondents
after January 1, 1968, Respondents will assign to
members of the Union the work of erecting and installing
light iron and metal studs which are to receive a drywall
finish, herein called the "work." On December 18, 1968,
the Union filed grievances with Respondents Siciliano and
Easley, alleging a breach of the "work jurisdiction" clause
of the contract because the "work" was to be performed
by persons who were not members of the Union and who
were employees of their alleged corporate subsidiaries.
Attached to the grievances were questionnaires requesting
information which was designed to show the relationship
between the Respondents and the alleged corporate
subsidiaries and to ascertain the extent to which the
"work" was being performed by employees of the alleged
subsidiaries. Respondents refused to furnish the requested
information, which was later revised and modified,
claiming that the grievances were without merit, that the
Union had no right to the requested information and that
in any event the "work jurisdiction" clause of the contract
was unlawful and invalid.
The principal issue in this proceeding is whether, under
the circumstances hereinafter more fully detailed,
Respondents' refusal to supply the requested information
is violative of Section 8(a)(I) and (5) of the Act.
B. The Respondents ' Violation of Section 8(a)(1) and
(5) of the Act
1. The Union's request for information and
Respondents' refusal to supply it'
Several months after January 1, 1968, the Union
informed its attorney, Donald O'Connor, that the Union
had been advised by Respondent Siciliano that the
"work" would be performed by persons who were not
members of the Union and who were employees of
Pittsburgh Acoustical Corporation (herein called
Pittsburgh Acoustical), that Siciliano took the position
that Pittsburgh Acoust â–º,^al was a corporate entity separate
and apart from Respondent Siciliano and that Pittsburgh
Acoustical therefore was not bound to the contract
between Respondent Siciliano (through the Association)
and the Union. O'Connor was also informed that
Respondent Easley was taking the same position that the
"work" would not be assigned to employee members of
the Union but rather would be performed by persons who
were not members of the Union and who were employees
of Easley & Rivers Drywall Corporation and Easley &
Rivers Acoustical Company, Inc. (herein called Easley &
Rivers Drywall and Easley & Rivers Acoustical,
respectively), that these two corporations were entities
separate and apart from Respondent Easley and that
therefore these two corporations were not bound to the
contract between Respondent Easley (through the
'The findings in this section are based on documentary evidence and
credited testimony which is not in dispute
Association) and the Union. The parties stipulated that
Pittsburgh Acoustical, Easley & Rivers Drywall and
Easley & Rivers Acoustical, hereinafter collectively
referred to as the alleged subsidiaries, are not members of
Respondent Association as corporate entities
Upon receiving this information, O'Connor, during the
period from August through the first part of December
1968, was engaged in an investigation into the
relationships between the various corporate entities. With
respect to Respondent Easley and the Easley Drywall and
Acoustical corporations, O'Connor found evidence tending
to show that Richard Rivers was the president of all three
corporations, that the other officers and the directors of
all three corporations were substantially identical, that the
three corporations shared the same business address,
office space and telephone, and further tending to show
that the Drywall and Acoustical corporations were wholly
owned subsidiaries of Respondent Easley. Similarly, with
respect to Respondent Siciliano and Pittsburgh
Acoustical, O'Connor discovered evidence to show t4ht
Anthony Siciliano was the president of these two
corporations, that the other officers and the directors of
the two corporations were substantially identical and that
the two corporations shared the same business address,
office space and telephone
Based on the above information uncovered in his
investigation, Union Attorney O'Connor concluded that
there was reasonable cause to believe that the alleged
subsidiaries were either alter egos to their respective
parents or were, along with their respective parents, single
or joint employers. He further believed that if either of his
conclusions were correct, then the alleged subsidiaries
would be bound by the Association contract and the
assignment of the "work" to nonmembers of the Union
would constitute a breach of the contract.
On December 18, 1968, the Union invoked the
grievance procedure of the contract by filing grievances,
signed by Union Business Representative Robert Welty,
against Respondents Siciliano and Easley and their
respective alleged subsidiaries. The grievances alleged that
Respondents and their wholly owned subsidiaries, as alter
egos or as the "Employer," violated the "work
jurisdiction" clause of the agreement by failing to assign
to members of the Union "the erection and installation of
light iron and metal studs which are to receive a drywall
finish . . ., and requested certain specific relief and
remedies . Since the validity of the grievances depended
upon the relationship between the two Respondents and
their alleged subsidiaries and the merits of the grievances
depended upon whether and to what extent the employees
of the alleged subsidiaries were performing the "work,"
O'Connor prepared and enclosed with the grievances
certain questions to the five corporations, designed to
probe this relationship and to ascertain the necessary
facts. Thus, the written grievances concluded as follows:
In order that we may evaluate and fully consider all
relevant and material factors in the processing of this
grievance, we respectfully request that you make
available to us in writing the information requested in
the enclosed questionnaire on or before January 13,
1969. We make this request pursuant to our statutory
right to such information under Section 8a5 (sic) of the
National Labor Relations Act.
Since we have no other alternative method available
to us to satisfactorily obtain this information, we make
this request of you. This information will permit us to
intelligently discharge our legal obligation to represent
our membership properly In answer (sic) the questions
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attached, please answer the questions with respect to
each of the corporations named above. If for any
reason you fail to answer a question or questions,
please state the reason for failing to answer the
question.
Should you have any question or wish to discuss any
aspect of this with me, please feel free to contact me.
By letter addressed to Welty and dated January 9,
1969, Louis Emanuel, counsel for all Respondents, replied
to the grievances. He denied the alter ego and single or
joint employer allegations of the grievances and also
denied that the contract had been breached. He made no
reply to the questions which O'Connor had propounded.
About January 13, 1969, Emanuel telephoned
O'Connor and informed him that Respondents Siciliano
and Easley would not supply the requested information '
Emanuel denied that the grievances were meritorious but
offered to meet with the Union concerning them
O'Connor replied that without the requested information
any grievance meetings would be useless.
By letter addressed to Emanuel and dated January 16,
1969, O'Connor advised that he had filed "appropriate
charges" with the Board in view of Emanuel's statement
that the information would not be forthcoming. O'Connor
further emphasized that any attempt to resolve the
grievances without the requested information would be
futile, and pointed out that the fact that the grievances
were not being processed for this reason should not be
deemed as having prejudiced the Union's position on the
grievances
By reply letter dated January 17, 1969, Emanuel again
took the position that Respondent Siciliano and Easley
would not supply the requested information. He stated
that the requested data and information "was improper"
and that the questions were "excessive" and
"burdensome " In addition, he contended that the "work
jurisdiction" clause that formed the basis for the
grievances was "illegal and void."
By letter dated March 24, 1969, Emanuel again
informed O'Connor that Respondents Siciliano and Easley
were continuing to take the position that the information
would not be supplied because the "work jurisdiction"
clause was invalid. In addition, Emanuel stated that he
was willing to discuss with O'Connor the question of what
information would be supplied "in the event (and only in
the event)" that the argument concerning the invalidity of
the "work jurisdiction" clause were found to be without
merit.
By letter dated March 27, 1969, Emanuel informed
O'Connor that he had met with his clients and that there
were some questions which they would answer "in the
event the present proceeding is ultimately resolved against
the said defendants." He further indicated that there were
other questions which they in any event would not answer
He did not specify which questions fell into the two
categories. In addition, Emanuel claimed, without
specifying, that some questions were "irrelevant" and
"burdensome," and suggested that "perhaps" the Union
"could eliminate a good number of questions or trim
them "
By reply letter of April 3, 1969, O'Connor informed
Emanuel that he had substantially revised the
questionnaire by eliminating 63 questions, adding 2 new
'As Emanuel was not representing the three alleged subsidiaries, he
made no statements regarding whether or not they would supply any
information The alleged subsidiaries have never responded to the request
for information
ones and modifying many others. The revised questions
were attached to the letter and were directed to
Respondents Siciliano and Easley who were requested to
answer questions about themselves and their alleged
subsidiaries. O'Connor also offered to meet with Emanuel
to discuss the revised questionnaire '
On April 22, 1969, Emanuel replied to the revised
questionnaire He listed certain questions which
Respondents Siciliano and Easley would answer in the
event that the present charges were "eventually resolved
against" them, he listed other questions which he -stated
they would not answer in any event, without indicating
any reason for this position. Finally, he stated that the
said Respondents would answer no questions at all
concerning the alleged subsidiaries because "we do not
believe" that they "are proper parties to this proceeding "
By reply letter dated May 1, 1969, O'Connor remarked
that he was "very disappointed and surprised to see that
we are as far apart as we are," noted that Emanuel had
stated that no information at all would be supplied by
Emanuel's clients with respect to the alleged subsidiaries,
pointed out that in view of Emanuel's position in this
regard any further discussions of the questions "would
appear at this point to be exercises in futility," and
concluded that "we are going to leave the matter in the
hands of the National Labor Relations Board to resolve
through the complaint procedure."
There has been no communication by Emanuel
indicating any change of position since O'Connor's May
1, 1969, letter.
2. Contentions of the parties
The General Counsel and the Union contend, and the
Respondents deny, that the requested information was
necessary and relevant to enable the Union to administer
its contract with Respondents and that therefore the
refusal to supply it constitutes a refusal to bargain within
the meaning of Section 8(a)(5) and (I) of the Act
Respondents also contend that the requested information
is "burdensome" and that some of it is "confidential "
Respondents' principal defense is that the contract's
"work jurisdiction" clause, which forms the basis for the,
grievances, is unlawful and invalid because allegedly
entered into pursuant to alleged Section 8(b)(4)(D) strike
pressure in 1967, that the alleged invalidity of the clause
means that the grievances are without merit, and that
therefore no information relative thereto need be supplied.
The General Counsel and the Union first take the position
that Respondents are precluded from raising this defense
by Section 10(b) of the Act. In addition, they argue that
the 1967 strike was not violative of Section 8(b)(4)(D) of
the Act, that the "work jurisdiction" clause would not be
rendered unlawful even assuming such a violation, and
that the information must nonetheless be supplleed even
assuming the invalidity of the clause due to unlawful
strike pressure 5
3. The relevancy of the requested information
Respondents concede, as they must , that an employer
has an obligation under Section 8(a)(5) of the Act to
'The questions attached to the April 3 letter are the ones which are
attached to the instant complaint and made a part thereof
'Respondents also contended that , contrary to the allegation in the
complaint , the appropriate unit is geographically limited to Allegheny
County, Pennsylvania
EMPLOYING PLASTERERS' ASSN. OF ALLEGHENY COUNTY, PA.
provide requested information which is needed by the
bargaining representative to enable it to administer its
collective-bargaining agreement or for the proper
performance of its representative duties. N L.R B v.
Acme Industrial Co , 385 U.S. 432, 435-436; N L R.B v.
Truitt Manufacturing Company, 351 U.S. 149. The Acme
decision is particularly relevant to facts in the instant case
In that case the Supreme Court laid down the test for
disclosure to be applied where the Union is requesting
information to be used in connection with the processing
of a grievance. Thus, the Court stated that the union has a
statutory right to the information where there is a
"probability that the desired information was relevant and
t;iat it would be of use in carrying out its statutory duties
and responsibilities" in the processing of the grievance
(385 U.S. at 437, emphasis supplied). Respondents'
contention in their brief that the requested information is
not relevant because it is intended to be used "for the
attempted enforcement of an illegal contract provision," is
but another way of stating that it is not relevant because
the grievances are without merit. This approach
misconceives the issue, which is not whether the grievances
have merit but rather whether the information will be of
probable aid in determining whether or not the grievances
had merit. See also P. R. Mallory & Co, Inc, 171
NLRB No. 68, enfd. 411 F.2d 948 (C.A. 7).
In the instant case, the probable relevance of the
requested information to the grievances filed by the Union
is not open to question. It is clear that the validity of the
grievances in the Union's view depended on (1) whether
there was an alter ego relationship or, in the alternative, a
single or joint employer relationship between Respondents
Siciliano and Easley and their respective alleged
subsidiaries, and (2) whether, and to what extent, the
employees of the alleged subsidiaries were performing the
"work." The information which the Union sought to
obtain was designed to uncover the facts with respect to
these factors. It should be borne in mind that the evidence
which O'Connor possessed at the time of the filing of the
grievances was based on hearsay, was somewhat sketchy,
and did not cover the whole gamut of facts necessary to
establish the above factors. Without the requested
information, it would be impossible for the Union even
"to decide whether to take the grievances to arbitration in
the first place "6 The information sought therefore bore a
direct and obvious relationship to the grievances filed.
Thus, the test of "probability" of relevance has clearly
been met and Respondents were statutorily obligated to
furnish the requested information , unless there be merit to
Respondents ' remaining defenses.
4 The defense of the alleged invalidity of the "work
jurisdiction" clause
Respondents' principal defense relates to the alleged
invalidity of the "work jurisdiction" clause in the contract
between the parties. Respondents' argument in this regard
is as follows: The "work jurisdiction" clause is unlawful
and invalid because Respondents were forced to accept it
as a result of the Union's 1967 strike pressure which
would have constituted a violation of Section 8(b)(4)(D) of
the Act. This means that the grievances concerning the
breach of an unlawful clause would have no merit.
Therefore, Respondents argues, no information relative to
unmeritorious grievances need be supplied.
'Fafnir Bearing Company . 146 NLRB 1582, 1586 , enfd . 362 F.2d 716
(C.A 2)
145
In agreement with the General Counsel and the Union,
I find that Respondents' defense raises an issue which
relates wholly to the merits of the grievances, an issue
which is totally irrelevant to the Union's statutory right to
the requested information. These are contentions and
arguments which properly may and should be advanced by
Respondents in the grievance and arbitration proceedings.
It is well settled that in cases of this type, the Board
and the Courts do not pass upon the merits of the
grievance. The sole issue is whether or not the information
would have probable relevance to the grievance After the
information is supplied, the grievance is then processed
and disposed of one way or another in the grievance and
arbitration process. Thus, in specifically rejecting the
defense to the employer's refusal to supply requested
information in P R Mallory & Co., Inc., supra, the
Board stated that "we are not concerned in this case with
the merits of the Union's grievance" (171 NLRB No. 68).
The Board's sole concern was the probable relevance of
the requested information to the grievances filed. In
enforcing the Board's order requiring the information to
be supplied, the Court of Appeals for the Seventh Circuit
stated (411 F 2d at 955-956).
It is not the function of the Board, nor of this Court
sitting in review, to decide the precise theory of the
charge, to determine whether any charge of breach of
contract is borne out by the facts . . . . It is enough to
determine that the union "is making a claim which on
its face is governed by the contract" without "weighing
the merits of the grievance, considering whether there is
equity in a particular claim, or determining whether
there is particular language in the written instrument
which will support the claim . . . ' With the
information thus supplied, the union can make an
intelligent appraisal of the merits of the members'
complaint and an informed decision on whether to
process the grievance.
Similarly, in the Acme case, supra, the Supreme Court
referred to the propriety of "the Board's threshold
determination concerning the potential relevance of the
requested information" [emphasis added], pointing out
that after the requested information has been furnished a
conclusion may be reached "that the grievances filed are
without merit" or "an arbitrator might uphold the
respondent's contention that no breach of contract
occurred" (385 U S. at 437-438).
For the foregoing reasons, I reject as being without
merit Respondents' defense relating to the alleged
invalidity of the contract's "jurisdictional clause."'
'As additional grounds for the rejection of the Respondents' defense, the
General Counsel contends that ( 1) Respondent was barred by Sec 10(b) of
the Act from asserting this defense , citing Hod Carriers' Local 1298,
AFL-CIO (Roman Stone Construction Company), 153 NLRB 659, (2)
Respondents failed to establish that the 1967 strike was violative of Sec
8(bx4)(D) of the Act, pointing out, among other things, that the "work"
has not been the subject of a 10(k) proceeding and has never been
voluntarily adjusted by the parties , and (3) even assuming such an unlawful
strike , this would not render the "work jurisdiction" clause unlawful,
pointing out that Respondents are bound by their election in withdrawing
the 8(bx4)(D) charges before executing the contract and cannot now seek
to have the clause declared unlawful after having rejected the opportunity
to obtain the appropriate Board remedy for the alleged 8(bX4XD)
violation
Were it necessary to do so, I would find merit in these contentions of
the General Counsel and would also reject Respondents ' defense for all
these additional grounds
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Respondent' s remaining defenses
Respondents contend that some of the requested
information should not be supplied because it is
"confidential" and would be unduly "burdensome" to
obtain. This obviously is an affirmative defense which
must be established by competent evidence Ingalls
Shipbuilding Corporation. 143 NLRB 712, 742.
Respondents have not specified which questions they rely
on in this connection nor have they adduced any evidence
in support of their contention. The mere assertion that
certain data is "confidential" or would be "burdensome"
to obtain "does not necessarily make it so in the absence
of evidence to substantiate the defense." Ibid
Accordingly, I find no merit in Respondents' defense.
Respondents also raise a question about the
appropriateness of the unit . The complaint alleges that the
bargaining unit covers all journeymen lathers and
apprentices employed by members of the Association.
Respondents took the position in its answer and at the
instant hearing that the appropriate unit , as determined by
the current contract and collective-bargaining history, is
comprised of all journeymen lathers and apprentices
employed within Allegheny County, Pennsylvania by
Association members. Respondents presumably have now
abandoned this issue, as it is nowhere mentioned in their
brief.
In any event, the record does not support Respondents'
contention. Paragraph 5 of the instant complaint describes
the unit exactly as it is set forth in Article I of the current
collective-bargaining agreement. In addition, Union
Business Agent Robert Welty credibly testified in this
respect as follows: The current contract covers all
journeymen lathers and apprentices employed within a
certain geographic area by Association members That
area, drawn on General Counsel's Exhibit 17, extends
beyond the confines of Allegheny County, Pennsylvania.
When Association members employ lathers and
apprentices outside of that area, they are bound by
contracts of other locals of the Union's International The
geographic jurisdiction of the Union has been the same
for approximately 4 years During that period, the current
contract and the one immediately preceding it covered all
lathers and apprentices employed within the
above-described geographic area by Association members.
Neither Respondents nor other members of the
Association have ever raised any questions concerning the
geographic coverage of the contracts.
In view of the foregoing facts, Respondents unit
contentions are rejected.
6. Concluding findings
I find that the appropriate bargaining unit, as
determined by the contract and the collective-bargaining
history, is comprised of all journeymen lathers and
apprentices employed within the geographical area shown
on General Counsel's Exhibit 17 by employer-members of
the Association. I also find that by failing and refusing to
supply the Union with the data and information requested
in the revised questionnaire submitted on April 3, 1969, a
copy of which is attached to the instant complaint,
Respondents Siciliano and Easley have refused to bargain
in violation of Section 8(a)(5) and (1) of the Act.'
'Recognizing that no request for the information was made of the
Association itself, the General Counsel nevertheless contends in his brief
that the unlawful conduct of Respondents Siciliano and Easley "in refusing
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities pf Respondents, set forth in section III,
above, occurring in connection with its operations
described in section I, above, have a close, intimate and
substantial relation to trade, traffic and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
CONCLUSIONS OF LAW
1. By the conduct of Respondents Siciliano and Easley
in failing and refusing to supply the Union with the data
and information requested in the Union ' s revised
questionnaire of April 3, 1969, said Respondents have
engaged in and are engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
3. Respondent Association did not engage in the unfair
labor practices alleged in the complaint.
THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I will recommend that they cease
and desist therefrom and take certain affirmative action
which will effectuate the policies of the Act.
I will recommend that, upon request, Respondents
Siciliano and Easley supply the Union with the data and
information requested in the Union's revised questionnaire
of April 3, 1969, a copy of which is attached to the instant
complaint, and that they post appropriate notices.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following:
RECOMMENDED ORDER
Respondents Siciliano Brothers, Inc., Pittsburgh,
Pennsylvania, and Easley and Rivers Plastering Company,
Inc., Monroeville, Pennsylvania, their officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International
Union of Wood, Wire and Metal Lathers, Local No. 33,
AFL-CIO, as the exclusive representatives of the
employee's in the appropriate unit by refusing to furnish
the Union the data and information requested in the
Union's revised questionnaire of April 3, 1969.
(b) In any like or related manner interfering with,
restraining or coercing their employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, furnish the Union with the data and
information sought in the Union's revised questionnaire of
to supply the information should be attributed to the Association " and that
therefore Respondent Association also "should be deemed to have violated
Section 8(aX5) of the Act " I find no merit in this contention Employers'
Association of Building, Meta! Fabricators, et at, 149 NLRB 382, relied
on by the General Counsel, is distinguishable because in that case the
Union 's request for information was also directed to, and denied by, the
Association ( 149 NLRB at 389, 393) I will accordingly recommend that
the complaint be dismissed as to Respondent Association.
EMPLOYING PLASTERERS' ASSN. OF ALLEGHENY COUNTY, PA.
April 3, 1969.
(b) Post at their respective places of business, copies of
the attached notice marked "Appendix "' Copies of said
notices, on forms to be provided by the Regional Director
for Region 6, shall, after being duly signed by an
authorized representative of Respondents, be posted by
them immediately upon receipt thereof, and be maintained
by them for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 6, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondents have taken to comply
therewith.'
It is further recommended that the complaint be
dismissed insofar as it alleges that Respondent Employing
Plasterers' Association of Allegheny County,
Pennsylvania, violated Section 8(a)(l) and (5) of the Act.
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order " shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read - "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps
Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
147
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify you that:
WE WILL, upon request , furnish International Union
of Wood , Wire and Metal Lathers , Local No. 33,
AFL-CIO, with the data and information sought in the
Union ' s revised questionnaire of April 3, 1969.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce their employees in the exercise
of their rights guaranteed in Section 7 of the Act.
SICILIANO BROTHERS,
INC.
(Employer)
Dated By
(Representative ) (Title)
EASLEY & RIVERS
PLASTERING COMPANY,
INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material
If employees have any questions concerning this notice
or compliance with its provisions they may communicate
directly with the Board ' s Regional Office, 1536 Federal
Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania
15222, Telephone 412-644-2977.