George Koch & Sons, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 695 (N.L.R.B. 1989)

GEORGE KOCH & SONS , INC. 695
George Koch & Sons, Inc. and Sheet Metal Workers
International Association , Local Union No. 20.
Case 25-CA-18958
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHNASEN AND CRACRAFT
On December 13, 1988 , Administrative Law
Judge Irwin Kaplan issued the attached decision.
The Respondent filed exceptions and a supporting
brief; the General Counsel filed limited cross-ex-
ceptions , a supporting brief, an answering brief to
the Respondent's exceptions , and a motion to strike
the Respondent 's Exhibit A to its exceptions; and
the Respondent filed an answering brief to the
General Counsel's limited cross-exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings, t and
conclusions and to adopt the recommended Order
as modified.2
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
5.
' The Board 's established policy is not to overrule an administative law
judge's credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cit . 1951).
To the extent that the Respondent has excepted to some of the judge's
credibility findings , we have carefully examined the record and find no
basis for reversing the findings.
We agree with the judge that the General Counsel established that the
Union had an objective factual basis for believing that the Respondent
was subcontracting unit work to Alpha and that Alpha and the Respond-
ent were a double-breasted operation . We also agree with the judge that
the requested information was relevant to the Union 's performance of its
job as the collective -bargaining representative of the Respondent's em-
ployees and that the Respondent 's failure to provide the information at
all or in a timely manner violated Sec 8(a)(5). In so concluding, we rely
specifically on the facts that the information related to subcontracting
and that subcontracting was an issue in the ongoing negotiations.
We note that the Respondent did not contend at the hearing that the
subcontracting clause in the parties' collective -bargaining agreement was
invalid and , therefore, the Respondent's exception on this point is not
timely raised . We find it unnecessary , in any event , to address this issue
because we rely on the judge 's findings regarding the relevance of the
requested information to the negotiations . Accordingly , we find it unnec-
essary to pass on the General Counsel 's motion to strike the Respondent's
exception on this issue.
8 The judge 's remedy , recommended Order , and notice require the Re-
spondent to provide the Union with the requested information within the
Respondent 's knowledge and/or control . Pursuant to the General Coun-
sel's exception on this matter , we will modify the recommended Order
and notice to provide the standard Board remedy for this situation. See,
e.g, Bentley-lost Electric Corp., 283 NLRB 564 (1987). Any disputes re-
garding the Respondent 's fulfillment of its obligations under this decision
can be addressed in the compliance stage of this proceeding.
"5. By refusing to furnish the Union with the re-
quested information relevant to collective-bargain-
ing negotiations , the Respondent failed to bargain
collectively and in good faith with the Union and
has thereby engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , George Koch & Sons, Inc., Evansville,
Indiana, its officers, agents, successors , and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1(a).
"(a) Failing to bargain collectively and in good
faith with Sheet Metal Workers International Asso-
ciation, Local Union No. 20, by refusing to furnish
the Union with the requested information relevant
to collective-bargaining negotiations."
2. Substitute the following for paragraph 2(a).
"(a) Promptly furnish the Union , on request, the
previously requested information relevant to collec-
tive-bargaining negotiations."
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT fail to bargain collectively and in
good faith with Sheet Metal Workers International
Association , Local Union No. 20 , by refusing to
furnish the Union the requested information rele-
vant to collective-bargaining negotiations.
WE WILL NOT in any like or related manner
interfere with , restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL promptly furnish the Union, on re-
quest, the previously requested information rele-
vant to collective-bargaining negotiations.
GEORGE KOCH & SONS, INC.
Robert E. Haves, Esq., for the General Counsel.
295 NLRB No. 73
696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Arthur D. Rutkowski, Esq. (Bowers, Harrison, Kent & T.
Miller), of Evansville, Indiana, for the Respondent.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge. This case
was heard in Evansville, Indiana, on February 19, 1988.
The underlying charges were filed on October 26, 1987,
by the Sheet Metal Workers International Association,
Local Union No. 20 (the Union) against George Koch &
Sons, Inc. (the Respondent or Koch). These charges
gave rise to a complaint and notice of hearing dated De-
cember 1, 1987.
The gravamen of the complaint is that the Union re-
quested information of the Respondent "with regard to
the business relationships and interconnections between"
said Respondent and a company known as Alpha Indus-
tries to determine whether said Respondent was wrong-
fully "diverting work" and that the Respondent's refusal
and failure to furnish such information is violative of
Section 8(a)(5) and (1) of the National Labor Relations
Act (the Act).
The Respondent filed an answer amended at the hear-
ing conceding, inter alia, certain jurisdictional facts, the
Union's collective-bargaining exclusivity, and the appro-
priateness of the unit, but denying that it committed any
unfair labor practices. Moreover, the Respondent con-
tends affirmatively that as it is not alleged that the Union
represents any of the employees of Alpha Industries, that
the General Counsel must "plead and prove the rel-
evance of the information requested."
Based on the entire record, including my observation
of the demeanor of the witnesses as they testified, and
after careful consideration of the posttrial briefs, I
making the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Indiana corporation with an office
and place of business in Evansville, Indiana, is engaged
in the manufacture and assembly of industrial ovens, con-
veyors, paint finishing and coating equipment, and relat-
ed products. In connection with the aforenoted business
operations, the Respondent, inter alia, has sold and
shipped from its Evansville, Indiana location products,
goods, and materials valued in excess of $50,000 directly
to points outside the State of Indiana. The Respondent
admits, the record supports, and I find that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
The Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
ed products. For some unspecified number of years and
at least since 1983, the Respondent's employees have
been represented by Local 20.' Before the round of ne-
gotiations which gave rise to the instant dispute, the last
collective-bargaining agreement between the parties was
effective, by its terms, August 10, 1984, until August 8,
1987 (G.C. Exh. 2).
On or about July 13, 1987,2 the parties commenced
the instant round of negotiations for a new collective-
bargaining agreement. On July 21, the second bargaining
session, the Union presented the Respondent with a six-
page request for information containing some 89 items
dealing with the Respondent's business, the business op-
erations of a company know as Alpha Industries (Alpha)
and the interrelationship of both companies (G.C. Exh.
1(a), Exh. "A"). The document referred to the Respond-
ent and Alpha Industries as "A" and "B" respectively.
For example, the Union's questionnaire asked the Re-
spondent to identify both "A" and "B"s customers
during the past 3 years and to define the geographic area
in which both companies do business. Further, the Re-
spondent was requested to "identify business(es) -to
whom "A" sells, rents or leases its operating equipment,
contruction equipment or tools," as well as to whom "B"
sells, rents, etc.3
In attendance for the Union at aforenoted second bar-
gaining session was Union Business Representative
David Harmes, business representative and Local 20
President Richard Peck, and Jack McNeely, another
business representative for Local 20. Clarence Arbeiter,
vice president of industrial relations, attended that meet-
ing on behalf of the Respondent. At the instant hearing
Hames provided the following explanation for the re-
quested information:
The reason behind it, we were in negotiations and
we felt like we had enough evidence that had been
collected since 1983 to justify requesting this infor-
mation due to the fact that Alpha Industries has
consistently followed George Koch Sons [Respond-
ent] around the country installing their equipment.
.... We feel that information was relevant to our
negotiations. [Tr. 22.]
By letter dated July 24, 1987, Arbeiter asked Hames to
clarify further the reasons for the request (questionnaire)
in order to properly respond thereto. (G.C. Exh. 3.)
There, Arbeiter also noted "any such request for infor-
mation must be relevant to some legitimate purpose con-
cerning our negotiations for a new building trades agree-
ment." On July 28, the Union responded by letter, hand
delivered, stating, inter alia, that it "has reason to be-
lieve" that both companies are "integrally related" and
"perhaps" subcontract certain sheet metal items to each
II. THE UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Respondent is primarily engaged in the manufac-
ture, fabrication , and assembly of industrial ovens, con-
veyors, paint finishing and coating equipment , and relat-
I On November 1, 1983, Local 96 , Local 478 , Local 572, and six other
building trade locals in the State of Indiana merged and formed Local 20.
These locals will be referred to herein without distinction as "Local 20"
or "the Union" (Tr. 17).
$ All dates hereinafter refer to 1987 unless otherwise indicated
s The questionnaire in its entirety is published and marked as "Appen-
dix A" at the end of this decision . (The 89 items were not numbered in
the original )
GEORGE KOCH & SONS, INC.
other. (G.C. Exh. 4.) The Union there noted that "[f]or
this reason and others it could affect all of the provisions
of the present labor agreement including Article II, the
sub-contracting clause." That provision in its entirety
states as follows:
ARTICLE II.
(Erection or Installation of Company 's Products)
Section 1. The Company agrees to use this Agree-
ment for oven and paint finishing systems and their
apputenances only. The Company also agrees to at-
tempt to secure the work as a turnkey contractor at
all times.
The Union also agrees to assist the Company in
whatever way necessary to secure the erections of
the work described in this Agreement , including se-
curing special conditions from other Sheet Metal
Locals and obtaining the agreement with other
trades.
The Company agrees that it will follow the
below procedure relative to the installation or erec-
tion of all products and/or equipment manufactured
under this Agreement for use in the building and
contruction industry , and coming within the trade
jurisdiction or journeymen members of Sheet Metal
Workers' International Association.
A. Whenever the Company subcontracts such
products and/or equipment it agrees to subcontract
same to contractor who employs jouneymen sheet
metal workers for this type of work.
B. Whenever the Company erects such work
itself, it shall call upon the building and construc-
tion trades union affiliated with Sheet Metal Work-
ers' International Association having jurisdiction
over the area in which such work is to be per-
formed to furnish it with men at the prevailing
wages and conditions of said Local Union.
Whenever the Company sells such products
and/or equipment direct to a general or specialty
contractor or an owner, it shall furnish the Union
with information on any such shipments if requested
in writing . Such information shall include the type
of products or equipment shipped , the date of ship-
ment, name and address or consignee and/or loca-
tion of delivery site.
Section 2 . Subject to other applicable provisions
of this Agreement the Company agrees that when
subcontracting for prefabrication of materials cov-
ered herein , such prefabrication shall be subcon-
tracted to fabricators who pay their employees en-
gaged in such fabrication not less than the compara-
ble sheet metal industrial fabrication rated as estab-
lished under provisions of this Agreement.
In essence , the Respondent made its request for infor-
mation to monitor compliance with article II to ensure
that the Respondent was not engaged in double-breasted
operations .4 (The factors relied on by the Union in sup-
4 "The term double-breasted is used to describe contractors who oper-
ate two companies , one unionized and the other nonumonized or open-
697
port of its suspicion that the Respondent and Alpha In-
dustries were engaged in "double-breasted " operations
will be noted more fully below.)
By letter dated July 30, Arbeiter responded to the
Union's request for information , in pertinent part, as fol-
lows:
[P]lease be advised that George Koch Sons, Inc.
does not own or control Alpha Industries and
George Koch Sons, does not have within its knowl-
edge the detailed information you request concern-
ing Alpha Industries . Further, we are not integrally
related to, nor do we subcontract sheet metal items
to Alpha Industries.
Under separate purchase orders direct from cus-
tomers, Alpha Industries has installed Koch fabri-
cated equipment on several occasions as have other
non-union contractors . [G.C. Exh. 5.]
The aforenoted response did not satisfy the Union and
over the suceeding months their negotiators continued to
press Respondent for full compliance with its question-
naire . (Tr. 25.) Thus, in a memorandum to employees
dated October 9 regarding recent negotiations , Respond-
ent made several references to its dispute over subcon-
tracting with the Union. (G.C. Exh. 11.) There, the Re-
spondent reported , inter alia, that at the September 28
session:
[T]he existence of union and non-union competition
and its effect on KOCH'S ability to obtain work
was discussed at length, as was its relationship be-
tween Alpha and GEORGE KOCH SONS, INC.
In the industrial market, the majority of our com-
petitors are non-union. It was stated again, also, that
KOCH does not subcontract work to Alpha as
agreed in our current contract , but this is a problem
because some of our competition does subcontract
to non-union installers and customers wanting GKS
to do the same to get orders. [Id.]
In the same company memorandum, the Respondent
noted that at the session on October 7, the Union again
accused the Respondent of wrongfully subcontracting.
As to that session , the Respondent reported:
There was discussion once again about non-union
(as opposed to union) installation of our equipment
and a specific accusation by Local 20 that KOCH
subcontracted installation to Alpha at Stowe &
Davis in Grand Rapids Michigan . The Company
shop Depending on the underlying facts and circumstances of each case.
The employees of both constituent companies may be held to constitute a
single appropriate bargaining unit or the employees of each may be con-
tinued on held to form separate units In the former case , the collective-
bargaining agreement covering the employees of the unionized firm may
be held to cover the employees of the nonunion firm as well, or the em-
ployer may be ordered to bargain on behalf of both firms with the union
which had represented the unionized portion of such a double -breasted
operation." Associated General Contractors of California, 242 NLRB 891,
892 fn . 5 (1979), enfd . as modified 633 F.2d 766 (9th Cit. 1980), cert.
denied 452 U S 915 ( 1981); see also Burgess Construction Corp., 277
NLRB 765, 770-771, 773-774 (1977), enfd 596 F 2d 378 (9th Cir. 1979),
cert . denied 444 U.S. 940 (1979).
698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Committee stated that KOCH did not subcontract
to Alpha at Stowe & Davis. However, if a non-
union installer obtaining the installation contract on
that project had the effect of allowing KOCH to
obtain a fabrication order for our shops in Evans-
ville, that was certainly more desirable than any
competitor of ours (union or non-union) obtaining
the order instead . The Local Committee did not
agree with that position. [Id.]
Later that same month (October 26), the Union filed
the instant charges alleging that "[t]he information re-
quested is relevant to the formulation of the union's bar-
gaining postion and for contract administration," and
that Respondent's refusal to respond is violative of Sec-
tion 8(a)(5) and (1) of the Act. (G.C. Exh. 1(a).)
The Union has long suspected that Koch and Alpha
are engaged in double-breasted operations (at least since
1982 or 1983). To confirm those suspicions , Local 20 re-
quested other local unions to collect information regard-
ing Alpha's business in the paint finishing field as well as
information about the interrelationship between Alpha
and Koch. In response thereto, the Union received, inter
alia, two 1983 Dun & Bradstreet reports dealing with
Alpha and Koch respectively.5 (G.C. Exhs. 6 and 7.)
These reports revealed, inter alia, that both companies
are related (although, the "extent of intercompany rela-
tions" are "not disclosed") and that J. J. Hunsinger is a
director and secretary of Alpha and a director and vice
president and controller of Koch. The Union also re-
ceived a copy of Certificate of Authority of the Com-
monwealth of Kentucky for Alpha which issued in 1983
along with Alpha's application . (G.C. Exh. 8.) That ap-
plication listed J . J. Hunsinger as "Secretary Treasurer
and Director" of Alpha listing his address as 10 South
11th Street, Evansville, Indiana (Koch's address).
Further, the Union relied on information supplied by
employees or former employees of Alpha. Hames testi-
fied that back in early 1983, he spoke to Robert Vinson,
a former Alpha employee, who was then looking for
work. Later that same year, Harnes asked Vinson to pro-
vide an affidavit reflecting his knowledge of the relation-
ship between Alpha and Koch. According to Vinson's
affidavit, inter alia, while he was employed by Alpha, he
assembled installed work fabricated by Koch and "all of
his checks for wages and for expenses were made out by
Geo[rge] Koch Sons, Inc. in Evansville." (G.C. Exh. 10.)
Another former employee of Alpha, Raymond Beliles,
told the Union that while he was employed by Alpha, he
had worked on some seven different jobs where all of
the equipment installed was fabricated by Koch. Hames
testified that he asked Beliles to memorialize that infor-
mation in an affidavit . (See G.C. Exh . 9, Beliles' affidavit
dated November 9, 1987.)
Also in 1987, Hames received letters from Keith Platt,
business representative of Local 20 in the Fort Wayne,
5 Counsel for the Respondent objected to the receipt of the General
Counsel 's documentary evidence on the basis of hearsay ; that the docu-
ments were not properly authenticated , and they covered events too
remote in time to be of any relevance . The General Counsel offered such
evidence "[not] to prove the truth of their content , but rather to demon-
strate the basis on which the union acted." (G.C. Br. p. 6)
Indiana area, and John Herr , business representative of
Local 18 Milwaukee , Wisconsin), describing , inter alia,
still other jobs whereby Alpha installed equipment fabri-
cated by Koch. (G.C. Exhs. 12 and 13.) Platt's letter
made reference to a Hartford City Pre-Mix job asserted-
ly subcontracted to Alpha from Koch back in 1985.
Union President Peck testified about that same Hartford
City job . According to Peck, in the spring of 1985, at the
Pre-Mix Hartford job, he was told by Alpha employees
that they were doing work subcontracted by Koch. Peck
also testified that he had observed Koch 's labels on the
equipment.
While the Union did not file a grievance over the
Hartford City job, Peck asserted that he discussed sever-
al jobs, including said Hartford City job, with Arbeiter
in support of the Union 's request for information during
the 1987 negotiations . 6 In turn , Arbeiter told the Union
(as testified by Peck) that the customer had requested a
nonunion bid and on those occasions , "Alpha happened
to be there." (Tr. 66.) (Arbeiter did not testify nor was
any other witness presented by Respondent.)
B. Discussion and Conclusions
The central question posed by the pleadings is whether
the Union had a reasonable belief based on objective
facts that the Respondent (Koch) and another company
Alpha) were engaged in double-breasted operations (pre-
viously defined, see fn . 3, supra). It is not disputed and I
find that if answered in the affirmative, the requested in-
formation, in the circumstances of this case , is relevant
and must be furnished by the Respondent, on the Union's
request . Walter N. Yoder & Sons, 270 NLRB 710 (1984).
If, however, the record demonstrates that the Union's re-
quest is based solely on the suspicion that the companies
in question are engaged in double-breasted operations, as
contended by the Respondent, the Union has failed to es-
tablish the relevance necessary to impose an obligation
on the employer to supply such information . Bohemia,
Inc., 272 NLRB 1128 (1984). It is instructive to first note
the general principles dealing with relevance, presump-
tion , and burden of proof.
It has long been established that an employer has a
duty to provide, on the Union' s request, information
`.relevant in carrying out its statutory responsibilities."
NLRB v. Acme Industrial Co., 385 U.S. 432, 437 (1967);
Truitt Mfg. Co., 351 U.S. 149 (1946). Whether the infor-
mation is relevant and necessary turns on the facts of
each case . Procter & Gamble Mfg. Co. v. NLRB, 603 F.2d
1310, 1315 (8th Cir. 1979); Washington Hospital Center,
270 NLRB 396, 400 (1984). However, certain types of in-
formation pertaining to wages, hours, and working con-
ditions of bargaining unit employees are so intrinsic to
the core of the employer-employee relationship that the
6 In early 1984, Sheet Metal Workers International Association, Local
Union No . 41 brought a Sec . 301 action against the Respondent in the
United States District Court in Indianapolis , Indiana , for an alleged
breach of art. II, sec. I (assigning unit work to a nonunion company) of
the then-current collective -bargaining agreement . Local 41 subsequently
moved for voluntary dismissal without prejudice. However, by order
dated October 1, 1984, the action was dismissed with prejudice. (G.C.
Exhs . 15(a)-(e).) The Union continued to gather information regarding
the relationship between Koch and Alpha.
GEORGE KOCH & SONS, INC. 699
requested information is considered presumptively rele-
vant. San Diego Newspaper Guild v. NLRB, 548 F.2d 863,
867 (9th Cir. 1977). Accord: Teleprompter Corp. v.
NLRB, 570 F.2d 418 (1st Cir. 1977); Proctor & Gamble
Mfg. Co. v. NLRB, supra at 1315. On the other hand,
where as in the instant case, as acknowledged by the
General Counsel , "Information requested of an employer
about employees or operations other than those repre-
sented by the Union do not (emphasis added), of course,
enjoy the presumption of relevancy ." (Br., p. 2); see also
Westinghouse Electric Corp., 239 NLRB 106, 109-110
(1978); Ohio Power Co., 216 NLRB 987, 991 (1975). In
either case , the standard for relevancy is the same : a "lib-
eral discovery-type standard." Pfizer, Inc., 268 NLRB
916, 918 (1984), citing Loral Electronic Systems, 253
NLRB 851, 853 (1980); Acme Industrial, 385 U.S. at 437;
see also New York Times Co., 270 NLRB 1267, 1275
(1984).
As noted above , the instant case involves , at least os-
tensibly, a nonunit operation . Thus, in applying the a-
forenoted principles, the Union has the initial burden of
showing relevance . It should be noted , however, that
while the Union has this affirmative burden, it need not
demonstrate that the collective-bargaining agreement has
been violated or that the companies in question are en-
gaged in double-breasted operations ; rather, under a "lib-
eral discovery-type standard," it must show only that the
requested information has "some bearing" on these mat-
ters . See generally Pfizer, supra; see also NLRB v. Associ-
ated General Contractors, 633 F.2d 766, 772 (9th Cir.
1980), cert. denied 452 U.S. 915 (1981); San Diego News-
paper Guild v. NLRB, supra.
Here, I am persuaded that the Union has shown the
requisite relevance . First, it is noted , that unlike the situ-
ation presented in Bohemia, Inc., supra , which case is
heavily relied on by the Respondent, here, the Union re-
quested the disputed information during negotiations for
a new contract. Moreover, here, the Union was also con-
cerned that the Respondent was taking undue liberties
with article II, the subcontracting clause of the then cur-
rent collective-bargaining agreement . These concerns
were communicated by the Union to the Respondent
both verbally at the bargaining table and in correspond-
ence. (See G.C. Exhs. 4 and 11.)
Harmes testified that the Union's investigation of
Alpha disclosed that where "George Koch Sons did not
do the work themselves, predominantly Alpha (a non-
union contractor) was the `erector' (emphasis added) of
their product" (Tr. 54). Further, Harmes explained that
in "most cases" Alpha did the installation work for Koch
but little or no such work for other fabricators (Tr. 55).
It is noted that article II of the then-current contract
covered the "[e]rection or [i]nstallation of Company's
[p]roducts. (G.C. Exh. 2, p. 2.) Local Union President
Peck testified credibly' and without contradiction, inter
7 The only witnesses to testify were Peck and Hermes, both of whom
were called by counsel for the General Counsel . I found them to be re-
sponsive, consistent, and, in some significant areas , mutually corrobora-
tive . As such , and on the basis of my observation of their demeanor as
witnesses , I found them to be credible and reliable. It is also that the Re-
spondent has acknowledged that "there is really no material dispute of
the facts." (Br p 1.)
alia, that in the spring of 1985 at a Hartford City project,
individuals who identified themselves as Alpha employ-
ees told him "that they were working as a subcontractor
for George Koch and mentioned other projects as well"
(Tr. 61-63). While there, Peck observed, inter alia, that
the equipment these employees were installing had
"Koch" labels (Tr. 61). Peck testified that he reported
the matter to his assistant , Keith Platt , to investigate fur-
ther and to inform Business Representative Harmes of
the results. G.C. Exh. 12.)
The Hartford City matter did not resurface insofar as
coming to Peck 's attention until after negotiations com-
menced for a new contract in 1987. The record disclosed
that during those negotiations and in connection with the
Union's request for information, the Union informed Ar-
biter (Respondent 's chief negotiator) of the Hartford
City project and also of other jobs where Alpha asser-
tedly performed as a subcontractor for Koch.
Given the prominence the parties attached to the sub-
ject of subcontracting to nonunion installers during nego-
tiations and noting the information the Union had al-
ready acquired regarding the connection between Koch
and Alpha,8 I find that legitimate and substantial ques-
tions were raised as to whether said companies dealt at
arm's-length or contravened the double-breasted prohibi-
tions in the then-current collective-bargaining agreement.
As such , the requested information clearly has some
bearing on these questions and concomitantly , the Union
has shown its relevance. Accordingly, I find that the Re-
spondent, by not providing the requested information
within its knowledge and/or control , it has violated Sec-
tion 8(a)(5) and (1) as alleged.9
6 As noted above , in addition to the Hartford City project , the union
negotiators received similar information about other projects, mostly
from other union representatives , but also from former Alpha employees.
(See G C . Exhs . 9, 10, 13, and 14 ) Further , the Dun & Bradstreet reports
noted previously, inter alia, listed J. J. Hunninger as an officer and direc-
tor of both companies. (G.C. Exhs. 6 and 7 .) Still further, Alpha 's appli-
cation for a Certificate of Authority from the Commonwealth of Ken-
tucky identified J. J. Hunninger as "Secretary-Treasurer and Director" of
Alpha listing Koch 's address . (G.C. Exh . 8.) The Respondent objected to
these exhibits largely on the basis of hearsay . However , I find as noted in
Walter N. Yoder & Sons, supra at 656, fn 6, "This misses the point Testi-
mony concerning these reports was received not for the truth of their
content, but to demonstrate the basis on which the Union acted on this
matter."
9 Approximately 5 weeks after the original charges were filed , the Re-
spondent forwarded to the Board 's Regional Office in Indianapolis, Indi-
ana, certain limited responses to the Union's questionnaire. Along with
those responses , the Respondent noted that it was "not answering ques-
tions that require us to divulge proprietary and confidential information
or trade secrets." (R. Exh 1 .) Thus, inter alia , the Respondent refused to
provide any information dealing with "employee lists , customer lists and
vendor lists." (Id.) The record disclosed that the Union first learned that
the Respondent provided the Board 's Regional Office with any of the re-
quested information approximately I week before the instant trial.
Harmes testified credibly that he had not actually seen any of this infor-
mation until the morning of the trial (Tr. 52). In these circumstances,
noting particularly that the Respondent called no witnesses, adduced no
testimony and proffered no documentary evidence in support of its afore-
noted position , I find that the belated information it furnished the Board
(not the Union) was merely an incomplete and untimely disclosure. As
such , Respondent failed to fulfill its statutory obligation to furnish the
Union with all requested relevant information. See Electrical Energy Serve
ices, 288 NLRB 925 (1988); see also Pfizer, Inc., supra at 919 ("When the
claim of confidentiality is raised , the party asserting that claim has the
burden of proof.").
700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Sheet Metal Workers International Association,
Local Union No. 20 is a labor organization within the
meaning of Section 2(5) of the Act.
3. All sheet metal employees at Respondent 's plant
one, commonly known as 3, Sheet Metal Department,
Evansville , Indiana, facility ; but excluding all office cleri-
cal employees , all confidential employees , all professional
employees , and all guards and supervisors as defined in
the Act, and also excluding all regularly classified Field
Service employees, laboratory technicians, quality assur-
ance employees, shipping and receiving clerks and jani-
tors constitute a unit appropriate within the meaning of
Section 9(b) of the Act.
4. At all times material herein , the Union has been the
exclusive bargaining representative of the employees in
the aforesaid appropriate unit within the meaning of Sec-
tion 9(a) of the Act.
5. By refusing to furnish the Union with the informa-
tion requested as alleged in the instant complaint , within
its knowledge and/or control, the Respondent has failed
to bargain collectively with the Union and has thereby
engaged , and is engaging in unfair labor practices within
the meaning of 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.
THE REMEDY
Having found that the Respondent has engaged in con-
duct violative of Section 8(a)(5) and (1) of the Act, I rec-
ommend that the Respondent cease and desist therefrom
and take additional affirmative action necessary to effec-
tuate the purposes of the Act.
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by refusing to timely furnish
requested relevant information within its knowledge
and/or control to the Union, I recommend that the Re-
spondent be required to promptly furnish this material.
As for requested information not within the Respond-
ent's knowledge and/or control, I find that the record
falls short of establishing that the Respondent is under an
affirmative obligation to obtain such information in order
to comply with the Union's request. The obligation to
furnish information is not unlimited . Postal Service, 276
NLRB 1282, 1288 (1985).
An examination of the Union 's questionnaire (see App.
A) disclosed that in the absence of a single -employer,
alter ego and/or joint-employer relationship or a greater
degree of interlocking of owners, officers, directors, or
operations between Koch and Alpha than shown on this
record, I find it highly unlikely that certain of the re-
quested information would be within the knowledge
and/or control of the Respondent. Thus, the Respondent
would not be expected to "[d]escribe [Alpha's] compen-
sation program , including wage rates and fringe benefits.
(Id., item 81.) Similarly , I find it unlikely that the Re-
spondent would be able to "[i]dentify [Alpha's] custom-
ers during the last three years." (Id., item 42.) On the
other hand, it is likely that the Respondent has knowl-
edge of Alpha's phone number and directory listing. (Id.,
item 6.) In any event, rather than cover point by point
all 89 items contained in the questionnaire , noting par-
ticularly that the specifics thereof were barely touched
on at the hearing, I recommend that whether the items in
dispute are within the knowledge and/or control of the
Respondent be left to the compliance stage of this pro-
ceeding.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed10
ORDER
The Respondent, George Koch & Sons, Inc., Evans-
ville, Indiana, its officers , agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Sheet Metal Workers International Asso-
ciation, Local Union No. 20, by refusing to provide the
Union with answers within its knowledge and/or control
to the questionnaire published in Appendix A to this de-
cision.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Promptly furnish the Union , on request , the an-
swers within its knowledge and/or control to the ques-
tionnaire published in Appendix A to this decision.
(b) Post at its facilities at Evansville , Indiana, copies of
the attached notice marked "Appendix B."11 Copies of
the notice, on forms provided by the Regional Director
for Region 25, after being signed by Respondent's au-
thorized representative , of the shall be posted immediate-
ly upon receipt and maintained by the Respondent for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
'o If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall , as provided in Sec 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
" If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
GEORGE KOCH & SONS , INC. 701
APPENDIX A
July 21, 1987
Presented to George Koch July 21, 1987
"A" refers to George Koch & Sons
"B" refers to Alpha Industries
(Note : The union firm is identified as "A" and the
non-union firm as "B" in the following questions.)
1. Define the geographic areas in which "A" does
business.
2. Define the geographic areas in which "B" does busi-
ness.
3. State the business (es) and identify all office locations
of "A".
4. State the business (es) and identify all office locations
of "B".
5. Identify "A's" business phone number(s) and direc-
tory listing(s).
6. Identify "B's" business phone number(s) and direc-
tory listing(s).
7. Identify the banking institution , branch location and
account number of "A's" payroll account(s).
8. Identify the banking institution , branch location and
account number of "B's" payroll account(s).
9. Identify where and by whom "A's" accounting
records, corporate records and other business records are
kept.
10. Identify where and by whom "B's" accounting
records, corporate records and other business records are
kept.
11. Identify "A's" principle [sic] accountant , principle
bookkeeper and principle payroll preparer.
12. Identify "B's" principle accountant , principle book-
keeper and principle payroll preparer.
13. Identify "A's" contractor license number (s) for the
states where it does construction business.
14. Identify "B's" contractor license number(s) for the
states where it does construction business.
15. Identify the carrier(s) and policy number(s) for
"A's" Workers Compensation insurance , and other
health insurance programs.
16. Identify the carrier(s) and policy number(s) for
"B's" Workers Compensation insurance , and other health
insurance programs.
17. Identify "A's" federal and state taxpayer identifica-
tion number.
18. Identify "B's" federal and state taxpayer identifica-
tion number.
19. Identify amount(s) involved, reason(s) for, and
date(s) of transfer of any funds between "A" and "B".
20. Identify source(s) and amount(s) of "A's" line(s) of
credit.
21. Identify source(s) and amount(s) of "B's" line(s) of
credit.
22. Identify amount(s) involved and date(s) when "B"
has operated its capital with a guarantee of performance
by "A".
23. Identify the calendar period and terms by which
"A" provides office space to "B", or is provided with
office space by "B".
24. Identify "A's" building and/or office suppliers.
25. Identify "B's" building and/or office suppliers.
26. Identify by item(s) purchased , date(s) of purchase
and dollar volume of purchase(s) those building and/or
office supplies purchased jointly by "A" and "B".
27. Identify all business (es) that use "A's" tools or
equipment.
28. Identify all business(es) that use "B's" tools or
equipment.
29. Identify business (es) to whom "A" sells, rents or
leases its operating equipment, office equipment, con-
struction equipment or tools.
30. Identify business (es) to whom "B" sells, rents or
leases its operating equipment , office equipment, con-
struction equipment or tools.
31. Identify business(es) from whom "A" buys, rents
or leases its tools or equipment.
32. Identify business (es) from whom `B" buys, rents or
leases its tools or equipment.
33. Regarding equipment transactions between "A"
and "B", identify the purchase, rental or lease rate,
equipment involved, calendar period, and dollar volume
of each transaction.
34. Identify business(es) to whom "A" rents, leases or
otherwise provides office space.
35. Identify business(es) to whom "B" rents, leases or
otherwise provides office space.
36. Identify the terms by which "A" provides office
space to "B" and vice-versa.
37. Regarding equipment transactions between "A"
and business(es) other than "B", identify the purchase,
rental or lease rate , equipment involved , calendar period,
and dollar volume of each transaction in the previous
three years.
38. Regarding equipment transactions between 'B"
and business(es) other than "A", identify the purchase,
rental or lease rate , equipment involved , calendar period,
and dollar volume of each transaction in the previous
three years.
39. Identify which of the following services are pro-
vided for "B" by, or at, "A":
1. Administrative
2. Bookkeeping
3. Clerical
4. Detailing
5. Drafting
6. Engineering
7. Estimating
8. Managerial
9. Patternmaking
10. Sketching
11. Other
40. Identify which of the following services are pro-
vided for "A" by, or at, "B":
1. Administrative
2. Bookkeeping
3. Clerical
4. Detailing
5. Drafting
702
6. Engineering
7. Estimating
8. Managerial
9. Patternmaking
10. Sketching
11. Other
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
41. Identify "A's" customers during the last three
years.
42. Identify "B's" customers during the last three
years.
43. Identify customers that "A" has referred to "B".
44. Identify customers that "B" has referred to "A".
45. What customers of "B" are now or were formerly
customers of "A".
46. Regarding customers identified above as common
to "A" and "B", for each company state the calendar
period and dollar volume of work performed for the cus-
tomer.
47. Does "A" negotiate jobs to obtain work?
48. Does "B" negotiate jobs to obtain work?
49. Does "A" bid jobs to obtain work?
50. Does "B" bid jobs to obtain work?
51. Identify those persons who bid and/or negotiate
"A's" work.
52. Identify those persons who bid and/or negotiate
"B's" work.
53. Identify by customer, calendar period and dollar
volume any job(s) upon which "A" and "B" have bid
competitively.
54. Identify by customer, calendar period and dollar
volume any work "A" has subcontracted to "B", or re-
ceived by subcontract from "B".
55. Identify by customer, calendar period and dollar
volume projects on which "A" has succeeded "B", or
been succeeded by "B".
56. Identify work "A" performs on "B's" products or
jobs.
57. Identify work "B" performs on "A's" products or
jobs.
58. Identify where and how "A" advertises for em-
ployee hires.
59. Identify where and how "B" advertises for em-
ployee hires.
60. Identify where the employees of "A" report to
work.
61. Identify where the employees of "B" report to
work.
62. Identify by job title or craft position the number of
persons employed by "A" per pay period for the last
three years.
63. Identify by job title or craft position the number of
persons employed by "B" per pay period for the last
three years.
64. Identify by job title or craft position and respective
employment dates those employees of "A" who are, or
have been , employees of "B".
65. Identify by job title or craft position and respective
employment dates those employees of "B" who are, or
have been , employees of "A".
66. Identify by job title or craft position and transfer
dates those employees transferred between "A" and "B".
67. Identify projects of each company on which these
employees were working at the time of transfer.
68. Identify "A's" supervisors, job superintendents and
foreman or other supervisory persons with the authority
to hire, transfer, suspend, layoff, recall, promote, dis-
charge, assign , reward or discipline other employees or
who are responsible to direct employees, or adjust their
grievances , or effectively recommend such action for the
last three years.
69. Identify "B's" supervisors, job superintendents and
foreman or other supervisory persons with the authority
to hire, transfer , suspend , lay off, recall, promote, dis-
charge, assign , reward or discipline other employees or
who are responsible to direct employees, or adjust their
grievances , or effectively recommend such action for the
last three years.
70. Regarding those supervisory persons described
above as common to "A" and "B", identify the period(s)
of employment with each company.
71. Identify those at "A" who have authority to hire,
transfer, suspend, lay off, recall, promote, discharge,
assign , reward or discipline supervisory personnel or ef-
fectively recommend such action.
72. Identify those at "B" who have authority to hire
transfer , suspend , lay off, recall, promote, discharge,
assign , reward or discipline supervisory personnel or ef-
fectively recommend such action.
73. Identify those at "A" otherwise actively involved
with day-to-day management or operation.
74. Identify those at "B" otherwise actively involved
with day-to-day management or operation.
75. Identify by project, personnel involved and date of
event, any occasion when "A's" personnel was author-
ized to, or actually performed, a supervisory function for
"B„
76. Identify by project, personnel involved and date of
event, any occasion when "B's" personnel was author-
ized to, or actually performed, a supervisory function for
"A„
77. Identify "A's" managerial personnel having author-
ity to formulate and effectuate management policies, or
who are otherwise able to exercise discretionary action
within or even independently of established policy.
78. Identify "B's" managerial personnel having author-
ity to formulate and effectuate management policies, or
who are otherwise able to exercise discretionary action
within or even independently of established policy.
79. Identify by title and respective date of employment
thosemanagerial personnel of "A" who were ever em-
ployed by "B".
80. Identify by title and respective date of employment
those managerial personnel of "B" who were ever em-
ployed by "A".
81. Describe "B's" compensation program including
employee wage rates and fringe benefits.
82. Identify "A's" representative (s) who establish or
otherwise control the labor relations policy.
83. Identify "B's" representative (s) who establish or
otherwise control the labor relations policy.
84. Identify "A's" labor relations representative(s).
85. Identify "B's" labor relations representative(s).
GEORGE KOCH & SONS, INC. 703
86. Identify "A's" owners, officers, directors and 88 . Identify places and dates of "A's" directors' meet-
shareholders , and the percentage of ownership interest ings for the last three years.
(or number of shares) of each. 89. Identify places and dates of "B's" directors' meet-
87. Identify "B's" owners , officers, directors and share - ings for the last three years.
holders, and the percentage of ownership interest (or
number of shares) of each.