Hawg-N-Action, Inc.

National Labor Relations Board - Board Decisions

Jan 24, 1984

268 N.L.R.B. 616 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hawg-N-Action, Inc. and International Union of
Operating Engineers, Local No. 9, AFL-CIO,
CLC. Case 27-CA-8053
24 January 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge filed by the Union 21 September
1982, the General Counsel of the National Labor
Relations Board issued a complaint 28 October
1982 against the Company, the Respondent, alleg-
ing that it has violated Section 8(a)(5) and (1) and
Section 2(6) and (7) of the National Labor Rela-
tions Act. Although properly served copies of the
charge and complaint, the Company has failed to
file an answer.
On 8 December 1982 the General Counsel filed a
Motion for Summary Judgment. On 14 December
1982 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Company filed no response and the averments of
the Motion for Summary Judgment and of the at-
tached supporting exhibitsl stand uncontroverted.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
Section 102.20 of the Board's Rules and Regula-
tions provides that the allegations in the complaint
shall be deemed admitted if an answer is not filed
within 10 days from service of the complaint,
unless good cause is shown. The complaint states
that unless an answer is filed within 10 days of
service, "all the allegations in the complaint shall
be deemed to be admitted to be true and shall be so
found by the Board." Further, according to Exhibit
5 submitted by counsel for the General Counsel, on
24 November 1982 the counsel for the General
Counsel notified the Company by mail of the con-
sequences of failure to file an answer. No answers
were received from the Respondent by 8 Decem-
ber 1982, the date of the Motion for Summary
Judgment.
I February 4, 1982, counsel for the General Counsel filed a "Supple-
mental to Motion for Summary Judgment" in which he requests that the
Board accept as an additional attachment to the Motion for Summary
Judgment a copy of the 1978-81 collective-bargaining agreement between
the Respondent and the Union. The Board herein grants that request.
268 NLRB No. 82
FINDINGS OF FACT
1. JURISDICTION
The Company, a Colorado corporation, is a con-
tractor in the construction industry, engaged pri-
marily in excavation projects, at its facility in
Denver, Colorado, where it annually purchases and
receives goods and materials valued in excess of
$50,000 directly from points located outside the
State of Colorado and annually performs services
valued in excess of $50,000 for other firms which
annually, in the course of their operations within
Colorado, individually purchase and receive mate-
rials and services valued in excess of $50,000 di-
rectly from firms located outside Colorado. We
find that the Company is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
A. The Unit
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All employees of the Respondent who operate,
maintain, monitor, assemble, or repair power
operated equipment or plants and all employ-
ees of the Respondent who assist such employ-
ees; but excluding all superintendents, assistant
superintendents, supervisory personnel above
the rank of general foreman, general foremen,
specified foremen, professional engineers, mes-
senger boys, guards, confidential employees,
office employees, architects, draftsmen, and in-
spectors.
At all times material herein, the Union has been
and is the exclusive collective-bargaining represent-
ative of these employees by virtue of Section 9(a)
of the Act and its collective-bargaining agreements
with the Respondent, the most recent of which is
effective from 1 May 1981 to 30 April 1984.
B. The Request to Bargain and the Respondent's
Refusal
On or about 25 August 1982 the Union request-
ed, by letter,2 that the Respondent furnish it with
information regarding, in general, the business rela-
tionship between the Respondent and J. L. Exca-
vating, Inc. The Union stated that it had learned
that the Respondent's president, John Lint, and
perhaps other principals of the Respondent had es-
2 Attached hereto as "Appendix B."
616
HAWG-N-ACTION, INC.
tablished an "alter ego" company which would
thus be a "party" to the then current collective-
bargaining agreement between the Respondent and
the Union. The Union further stated that the re-
quested information was "necessary and relevant"
to its duty to administer the collective-bargaining
agreement.
It has long been held that an employer has an
obligation, as part of its duty to bargain in good
faith, to provide information needed by a bargain-
ing representative for the proper performance of its
duties.3 Where the information sought concerning
the relationship of an employer party to a bargain-
ing agreement with another employer not in com-
pliance with that agreement has a reasonable rel-
evance to the union's duty to administer and en-
force the agreement, the Board has held that the
employer party to the agreement must supply the
information requested. 4 In this case, information
obtained by the Union from other sources, the ac-
curacy of which is not disputed by the Respondent,
tends to indicate that the Respondent and J. L. Ex-
cavating, Inc. are alter egos and justifies the
Union's seeking relevant information to decide
whether its agreement with the Respondent had
been violated. Finally, the questions addressed to
the Respondent by the Union are within the ambit
of inquiries found by the Board to be reasonably
relevant to the administration and enforcement of a
collective-bargaining agreement. See cases cited at
footnote 4, supra.
On the basis of the foregoing findings, we con-
clude that the information requested by the Union
is relevant and essential to the performance of its
obligation as the bargaining representative of the
employees of the Respondent. It is further found
that the Respondent, by failing and refusing to pro-
vide the information requested by the Union, vio-
lated and is violating Section 8(a)(5) and (1) of the
Act. 5
CONCLUSIONS OF LAW
1. By failing and refusing to provide the Union
with the information it requested in its letter to the
Respondent dated 25 August 1982 the Company
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
As we have found that the Respondent refused
to give to the Union relevant information which it
3 NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956).
' Doubarn Sheet Metal, 243 NLRB 821 (1979); Hebert & Co., et al., 259
NLRB 881 (1981); Associated General Contractors of California. 242
NLRB 891 (1979).
a In light of the complaint's allegations, in combination with the Re-
spondent's complete failure to respond to those allegations, Chairman
Dotson and Member Hunter agrees with their colleague that a violation
has been established in the particular circumstances of this case.
requested for the purposes of administering and en-
forcing the collective-bargaining agreement, we
shall order that the Respondent furnish the Union
with the information it requested concerning the
Respondent's relationship with another company.
2. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
acton designed to effectuate the policies of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Hawg-N-Action, Denver, Colora-
do, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Interna-
tional Union of Operating Engineers, Local No. 9,
AFL-CIO, CLC, by refusing to furnish it with the
information requested in its letter to the Respond-
ent dated 25 August 1982.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guranteed them by Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Upon request, bargain collectively with Inter-
national Union of Operating Engineers, Local No.
9, AFL-CIO, CLC, by furnishing the said labor
organization with the information it requested by
its letter dated 25 August 1982.
(b) Post at its facility in Denver, Colorado,
copies of the attached notice marked "Appendix
A."6 Copies of the notice, on forms provided by
the Regional Director for Region 27, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
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 Respondent has taken to comply.
6 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
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 the notice.
WE WILL NOT refuse to bargain collectively with
International Union of Operating Engineers, Local
No. 9, AFL-CIO, CLC, by failing and refusing to
furnish the said labor organization with the infor-
mation requested in the Union's letter to us dated
25 August 1982.
WE WILL, upon request, furnish International
Union of Operating Engineers, Local No. 9, AFL-
CIO, CLC, with the information requested in the
Union's letter to us dated 25 August 1982.
HAWG-N-ACTION, INC.
APPENDIX B
I am writing to you on behalf of the International
Union of Operating Engineers, Local Union No. 9. It has
come to my attention that Hawg-N-Action is, or may be,
in violation of the collective bargaining agreement with
Local 9 by reason of the establishment by yourself and,
perhaps other principals of Hawg-N-Action, Inc., of an
alter-ego company under the terms of the National
Labor Relations Act, which company is, I believe,
known as J. L. Excavating, Inc. Specifically, we believe
that the relationship between Hawg-N-Action, Inc., and
J. L. Excavating, Inc. is or may be such that J. L. Exca-
vating, Inc. is party to the existing contract between
Hawg-N-Action, Inc. (which contract has never been
disavowed through the course of the bankruptcy pro-
ceedings) and Local 9.
The following information is necessary and relevant to
the Union's administration of the contract, and is sought
in furtherance of its duty of fair representation to all per-
sons represented by it under the terms of the current col-
lective bargaining agreement. We would appreciate your
preparing answers to the following questions. Unless we
have received the information sought within ten days of
your receipt of this letter, we will take appropriate
action with the National Labor Relations Board.
1. Please identify each officer, shareholder, director, or
other management representative of Hawg-N-Action,
Inc. since October 6, 1981 by name, title or titles, and
dates during which they filled or have filled the position
identified. As to each such person, state whether they
hold or have held at any time since October 6, 1981, any
position in J. L. Excavating, Inc. If so, identify the
nature of the position(s) they hold or held; the date upon
which such persons commenced to hold the position(s)
named; and, if appropriate, the date you which they
ceased to hold said position(s) in J. L. Excavating, Inc.
2. State the name of each person who currently has, or
has had at any time since October 6, 1981 a function re-
lated to labor relations for Hawg-N-Action, Inc. As to
each such person, identify the person's title and the exact
nature of their function. If any person has performed
such a function since October 6, 1981 and no longer
does, or any person has begun to perform such a func-
tion since October 6, 1981 state the first and last dates
upon which that person performed that function.
3. State the name of each person who has or has had
since October 6, 1981 a function related to labor relations
for J. L. Excavating, Inc. As to each such person, identi-
fy the person's title and the exact nature of their func-
tion. If any person has performed such a function since
October 6, 1981 and no longer does, or any person has
begun to perform such a function since October 6, 1981
state the first and last dates upon which that person per-
formed that function.
4. Identify all customers of J. L. Excavating, Inc.'s
since its commencement of business and identify those
who are now or were formerly customers of Hawg-N-
Action, Inc.
5. State the nature of business engaged in by Hawg-N-
Action, Inc.
6. State the nature of business engaged in by J. L. Ex-
cavating, Inc.
7. Identify all persons who currently perform or have
performed since October 6, 1981 clerical, administrative,
bookkeeping, managerial, engineering, estimating, or
other services for Hawg-N-Action, Inc. As to each such
person, identify the exact nature of the services per-
formed. If the person now performing any or all of these
functions has changed since October 6, 1981, identify the
dates during which each function was performed by each
person.
8. Identify all persons who now perform or have per-
formed since October 6, 1981 clerical, administrative,
bookkeeping, managerial, engineering, estimating, or
other services for J. L. Excavating, Inc. As to each such
person, identify the exact nature of the services per-
formed. If the person now performing any of all or these
functions has changed since October 6, 1981, identify the
dates during which each function was performed by each
person.
9. Identify all persons who now perform or have per-
formed supervisory functions for Hawg-N-Action, Inc.
since October 6, May 1, 1981 and state the nature of the
functions performed by each such person. If such person-
nel has changed at any time since October 6, 1981, iden-
tify the dates during which each person performed su-
pervisory functions.
10. Identify all persons who now perform or have per-
formed supervisory functions for J. L. Excavating, Inc.
since October 6, 1981 and state the nature of the func-
tions performed by each such person. If such personnel
has changed at any time since October 6, 1981, identify
the dates during which each person performed superviso-
ry functions.
11. Are Hawg-N-Action, Inc. and J. L. Excavating,
Inc. joint beneficiaries of, or otherwise covered by, any
insurance policy or surety bond?
618
HAWG-N-ACTION, INC.
12. Describe the skills possessed by employees of
Hawg-N-Action, Inc. performing what you consider to
be employment covered by your collective bargaining
agreement with Local 9.
13. Describe the skills possessed by all classifications
of employees of J. L. Excavating, Inc.
14. Identify all former employees of Hawg-N-Action,
Inc. that are now or have been at any time since October
6, 1981 employed by J. L. Excavating, Inc. As to each
such person, list his or her job title; the date upon which
such person was hired by J. L. Excavating, Inc.; their
job title at date of hire; the person by whom they were
hired; and, if appropriate, the date and circumstances
under which such person severed his or her employment
with J. L. Excavating, Inc., including, if the person was
terminated, the name and job title of the person by
whom terminated.
15. Are or was J. L. Excavating, Inc. and J. L. Exca-
vating, Inc. Subchapter S corporations for federal tax
purposes? If so state the names of the persons recogniz-
ing income.
16. Identify precisely (name and serial number) the
equipment belonging to Hawg-N-Action, Inc. which was
used by J. L. Excavating, Inc. on the project on Havana
and Parker Roads for Great West Construction.
17. Identify any other equipment belonging to Hawg-
N-Action, Inc. which has been used at any time by J. L.
Excavating, Inc., stating the name and serial number of
the equipment; the contractor for whom the work was
performed; the location and nature of the work done;
and the dates during which the equipment was used.
State whether any payments have been made by J. L.
Excavating, Inc. to Hawg-N-Action, Inc. for the use of
such equipment, and if so, how much the payment was
and when the payment was made.
18. State whether any assests or money (other than as
identified above) has been loaned between Hawg-N-
Action, Inc. and J. L. Excavating, Inc. If loans have
taken place, describe the amount of money or the asset
loaned and the terms and conditions of such loan. State
whether those terms and conditions are in writing.
19. Have any employees of J. L. Excavating, Inc. per-
formed any work in the field since October 6, 1981 on
jobs for which Hawg-N-Action, Inc. was the excavating
subcontractor, and if so, identify the employee(s) in ques-
tion; the job site(s) upon which they performed work;
the dates during which such work was performed; and
the identity of the person or persons supervising them in
the field.
20. State whether J. L. Excavating, Inc. has used any
vehicle, machinery or equipment not belonging to Hawg-
N-Action, Inc. If so, state from whom that vehicle, ma-
chinery or equipment was leased or purchased; terms of
the lease or purchased agreement and, if appropriate,
identify the borrower and guarantor of any loan taken by
J. L. Excavating, Inc. to finance the lease or purchase.
21. Identify any machinery, vehicle or equipment
doing work for J. L. Excavating, Inc. which carries or at
any time carried the Hawg-N-Action, Inc. logo or other
identification.
22. State whether any money from John Lint's person-
al account at the United Bank of Denver (that account
into which certain checks written to Hawg-N-Action,
Inc. since May, 1982, were deposited) has been invested
in and/or spent on behalf of J. L. Excavating, Inc. by
John Lint. (Do not attempt to trace particular funds.)
23. For each individual named in answer to any ques-
tion in this letter, state that person's family or blood rela-
tionship to John Lint.
619