Howell Insulation Co.

National Labor Relations Board - Board Decisions

Aug 26, 1993

311 N.L.R.B. 1355 (N.L.R.B. 1993)

1355
311 NLRB No. 187
HOWELL INSULATION CO.
1 The Respondent has moved to reopen the record to include an
August 13, 1991 letter from the Respondent’s counsel to the General
Counsel concerning the Respondent’s position whether it was obli-
gated to process Local 90’s grievances. We deny the Respondent’s
motion because the evidence it seeks to admit is neither newly dis-
covered nor previously unavailable within the meaning of Sec.
102.48(d)(1) of the Board’s Rules and Regulations.
2 All dates are in 1991 unless otherwise stated.
Howell Insulation Company, Inc. and International
Association of Heat & Frost Insulators and As-
bestos Workers Local 90. Case 26–CA–14570
August 26, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On January 11, 1993, Administrative Law Judge
William F. Jacobs issued the attached decision. The
Respondent filed exceptions, a supporting brief, and a
reply to the General Counsel’s answering brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,
findings, and conclusions only to the extent consistent
with this Decision and Order.1
The judge found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to furnish
certain information requested by the Charging Party.
For the reasons set forth below, we reverse the judge’s
finding and dismiss the complaint.
The Respondent was signatory to several 8(f) agree-
ments with the International Association of Heat &
Frost Insulators and Asbestos Workers Local 78 (Local
78). The most recent agreement, which expired in June
1991, covered 50 counties in Alabama. In addition, ar-
ticle 1 of the agreement stated, in pertinent part:
The Employer further agrees on all operations
outside of the jurisdiction of the chartered terri-
tory of the Union he will abide by the rates of
pay, rules, and working conditions established by
the collective-bargaining agreement between the
local insulation contractors and the local Union in
that jurisdiction. The Employer may send a Jour-
neyman (Job Foreman) on any one operation
within the jurisdiction of another local Union, and
in the event of insufficient supply of local labor
in that territory, such additional employees as may
be necessary.
Prior to April 1991,2 the Respondent always accept-
ed the obligations imposed by article 1 of its agree-
ment with Local 78 when working on projects outside
of Local 78’s jurisdiction. Whenever the Respondent
successfully bid on a project in another jurisdiction, it
would contact the local in that jurisdiction, and the
local would refer its members to work as the Respond-
ent’s employees on that project. Further, the Respond-
ent would apply the terms of that local’s collective-
bargaining agreement to the Respondent’s employees
at that project.
In April, Carl Ellis, business manager for Inter-
national Association of Heat & Asbestos Workers
Local 90 (Local 90), noticed an advertisement seeking
insulators and other workers for a project in Counce,
Tennessee, which is in the jurisdiction covered by
Local 90’s collective-bargaining agreement. Ellis called
the telephone number listed in the advertisement,
which had an Alabama area code, and learned that the
project was to be performed by Universal Insulation
(Universal). Ellis then spoke with Local 78 Business
Manager James McDonald. McDonald informed Ellis
that the Respondent had a contract for the project in
Counce, but that Universal was now the contractor on
that job. McDonald further stated that the Respondent
and Universal were intertwined, and that they had an
alter ego or single employer relationship with the Re-
spondent acting as a union contractor and Universal
acting as a nonunion contractor. Ellis then asked
McDonald if it would bother Local 78 if Local 90 pur-
sued a grievance against the Respondent for per-
forming the work at the Counce project without adher-
ing to the terms of Local 90’s collective-bargaining
agreement. McDonald replied that it would not.
By letter dated June 19, Ellis informed the Respond-
ent that Local 90 was filing a grievance alleging that
the Respondent was operating as Universal in order to
circumvent certain provisions of Local 90’s collective-
bargaining agreement. The letter also requested that the
Respondent provide answers to 81 questions concern-
ing the Respondent’s relationship with Universal. The
letter stated that this information was needed in order
to determine whether the Respondent had, in fact, vio-
lated provisions of Local 90’s collective-bargaining
agreement. By letter dated June 27, John Howell, the
Respondent’s president, denied Ellis’ request for infor-
mation, stating that the Respondent had no obligation
to supply Local 90 with the requested information.
The judge found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to furnish
Local 90 with information necessary to process the
grievance against the Respondent. The judge found
that the Respondent’s relationship with locals outside
of Local 78’s jurisdiction was, by virtue of article 1 of
the Respondent’s collective-bargaining agreement with
Local 78, exactly the same as its relationship with
Local 78. Thus, the judge concluded that Local 90 was
the exclusive bargaining agent for the Respondent’s
employees at the Counce project, and that the Re-
spondent had a duty to provide Local 90 with the re-
quested information because it was relevant to Local
90’s statutory duties and responsibilities as those em-
1356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In light of our findings that Local 90 was not the exclusive bar-
gaining agent of the Respondent’s employees and that Local 90 was
not authorized to obtain the information on behalf of Local 78, we
find it unnecessary to pass on the judge’s findings that Local 90—
at the time of its request—had an objective, factual basis for believ-
ing that the Respondent and Universal were a single employer, and
that even if Local 90 did not have an objective, factual basis at the
time of its request, it was free to perfect its case after making its
request for information.
4 Service Employees Local 535 (North Bay Center), 287 NLRB
1223 (1988), cited by our colleague, does not resolve the issue. That
case did not involve information relevant to a grievance.
ployees’ exclusive collective-bargaining representative.
Moreover, the judge found that the Respondent was
obligated to provide Local 90 with the requested infor-
mation because Local 90 had sought and obtained the
authorization of Local 78 to file a grievance against
the Respondent.
In its exceptions, the Respondent argues, inter alia,
that it was not required to provide Local 90 with the
requested information because Local 90 was not the
statutory representative of the Respondent’s employees.
The Respondent also argues that Local 78 never au-
thorized Local 90 to obtain the requested information
on behalf of Local 78, and thus Local 90 was not act-
ing as Local 78’s agent when it requested the informa-
tion from the Respondent. We agree with both of these
arguments.
The duty to supply requested information arises
from a statutory bargaining obligation. Cowles Com-
munications, 172 NLRB 1909 (1968). Indeed, an em-
ployer must furnish the statutory representative of its
employees with requested information potentially rel-
evant to the union’s duties as the bargaining represent-
ative of the employer’s employees. NLRB v. Acme In-
dustrial Co., 385 U.S. 432 (1976). The Act does not
obligate an employer, however, to comply with a re-
quest for information from a union that is not the stat-
utory representative of the employer’s employees. See
E. L. Wagner Co., 294 NLRB 493, 494 (1989) (the
employer’s refusal to furnish information to the union
after expiration of an 8(f) agreement does not violate
the Act).
We find, contrary to the judge, that Local 90 is not
the statutory representative of the Respondent’s em-
ployees. Local 90 is neither signatory to an 8(f) agree-
ment with the Respondent, nor is it the 9(a) representa-
tive of the Respondent’s employees. The Respondent’s
relationships with outside locals may, by virtue of arti-
cle 1 of Local 78’s collective-bargaining agreement,
confer certain contractual rights on those locals as third
party beneficiaries to the Respondent’s collective-bar-
gaining agreement with Local 78. Such a relationship
does not, however, confer statutory rights on those out-
side locals. Consequently, the Respondent did not
enjoy a statutory relationship with Local 90, and thus
the Respondent did not have a statutory obligation to
furnish Local 90 with information concerning the
grievance.
We further find, contrary to the judge, that Local 90
was not acting as Local 78’s agent, and thus was not
authorized to obtain the requested information on be-
half of Local 78. Indeed, Local 90 never received au-
thorization from Local 78 to file a grievance on behalf
of Local 78. Rather, Local 90, through Business Man-
ager Ellis, merely asked Local 78 Business Representa-
tive McDonald if it would bother Local 78 if Local 90
filed a grievance against the Respondent, and McDon-
ald replied that it would not. While this communica-
tion suggests that Local 78 did not object to Local 90
filing the grievance, it does not indicate that Local 78
authorized Local 90 to pursue the grievance on behalf
of Local 78. Further, there is no evidence that Local
90 had apparent authority to request the information,
as Local 78 never communicated with the Respondent
concerning Local 90’s grievance or information re-
quest. Accordingly, we find that Local 90 pursued the
grievance on its own behalf, and was not authorized by
Local 78 to obtain information relevant to the proc-
essing of that grievance. Thus, there is no basis to con-
clude that Local 90 had any statutory right to obtain
the requested information from the Respondent.3
Our concurring colleague concludes that there would
be no 8(a)(5) violation even if Local 78 requested the
information, because the information concerned
nonunit employees. We agree with our colleague that
a breach of contract concerning nonunit employees is
not a violation of Section 8(a)(5). However, a breach
of contract is cognizable by the grievance machinery
of the contract. Our colleague concludes that an em-
ployer is privileged to refuse to furnish information
relevant to such a grievance. In our view, it is at least
arguable that such information must be supplied under
Section 8(a)(5) because it is germane to the effective
functioning of the grievance machinery, a mandatory
subject. Unlike our colleague, we do not pass on this
issue.4
As Local 90 was not the statutory representative of
the Respondent’s employees, and as Local 90 was not
authorized to request the information on behalf of
Local 78—the actual statutory representative of the
Respondent’s employees, we find that the Respondent
did not violate Section 8(a)(5) of the Act by refusing
to provide Local 90 with the requested information.
Accordingly, we shall dismiss the complaint.
ORDER
The complaint is dismissed.
CHAIRMAN STEPHENS, concurring.
I agree with my colleagues that the Respondent did
not violate Section 8(a)(5) of the Act by refusing to
furnish Local 90 with the requested information. I find,
however, that the Respondent’s refusal to comply with
1357HOWELL INSULATION CO.
1 In light of my finding that the Respondent did not violate the Act
because the requested information did not concern a mandatory sub-
ject of bargaining, I find it unnecessary to address the other issues
resolved by the judge and my colleagues concerning the Respond-
ent’s obligation to furnish the requested information.
1 Local 90.
2 Respondent or Howell.
3 Local 90’s request for information was made part of the com-
plaint and identified as attachment A (omitted from publication). The
Region filed a subpoena in order to obtain the information which
was the subject of Local 90’s request and of attachment A. Respond-
ent filed a motion to revoke. The motion to revoke was granted at
the hearing. Counsel for the General Counsel, at the hearing, re-
quested that an adverse inference be drawn based on Respondent’s
refusal to comply with the subpoena. The request is hereby denied.
Cf. Electrical Energy Services, 288 NLRB 925 (1988).
4 Universal Insulation Company, Inc., Parties in Interest (Uni-
versal).
5 Local 78.
the information request was not an unfair labor prac-
tice because the requested information did not concern
an issue that is a mandatory subject of bargaining.
Local 90 requested the information in order to deter-
mine whether the Respondent was operating in Local
90’s jurisdiction without adhering to the terms of
Local 90’s collective-bargaining agreement. The Re-
spondent was signatory to an 8(f) agreement with
Local 78, but not with Local 90. Article 1 of the Re-
spondent’s collective-bargaining agreement with Local
78 requires the Respondent—when working outside of
the jurisdiction of Local 78—to hire its employees
from the local that has a collective-bargaining agree-
ment in that jurisdiction and to apply the terms of the
local’s collective-bargaining agreement to the Re-
spondent’s employees. Thus, the Respondent’s failure
to adhere to the terms of Local 90’s contract while op-
erating in Local 90’s jurisdiction would, presumably,
constitute a violation of the extraterritorial provision of
article 1 of Local 78’s contract.
I find that to the extent that the extraterritorial provi-
sions of article 1 extend beyond the terms and condi-
tions of employment of unit employees, i.e., employees
represented by Local 78, those provisions do not con-
cern a mandatory subject of bargaining. Indeed, the
issues raised by Local 90’s information request did not
concern terms and conditions of employment of bar-
gaining unit employees, but rather concerned extra-
neous nonbargaining unit considerations over which
Local 78 could not have lawfully bargained to im-
passe. See Paperworkers Local 620 (International
Paper Co.), 309 NLRB 44 (1992). Further, the sub-
jects raised by Local 90 did not involve matters that
vitally affected terms and conditions of employment
for bargaining unit employees so as to make them
mandatory subjects of bargaining. See Allied Chemical
Workers Local 1 v. Pittsburgh Plate Glass Co., 404
U.S. 157, 179 (1971).
Thus, as certain extraterritorial provisions of article
1 do not concern mandatory subjects of bargaining, the
Respondent’s unilateral failure to comply with those
contractual provisions would not violate the Act. Pitts-
burgh Plate Glass, supra at 185. Consequently, it fol-
lows that the refusal to furnish information necessary
to administer or enforce those contractual provisions
would also not violate the Act. Service Employees
Local 535 (North Bay Center), 287 NLRB 1223
(1988), affd. 905 F.2d 476 (D.C. Cir. 1990), cert. de-
nied 111 S.Ct. 952 (1991). Accordingly, I find that the
Respondent’s failure to furnish the requested informa-
tion does not violate Section 8(a)(5) of the Act because
the requested information was necessary only to the
enforcement of contractual provisions that are not man-
datory subjects of bargaining. For this reason, I agree
with my colleagues that the complaint should be dis-
missed.1
Grace E. Speer and Ron Hooks, Esqs., for the General Coun-
sel.
Margaret H. Campbell, Esq., of Atlanta, Georgia, for the Re-
spondent.
Danny Ellis, of Memphis, Tennessee, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge. This case
was tried at Memphis, Tennessee, on May 13 and 14, 1992.
International Association of Heat & Frost Insulators and As-
bestos Workers Local 901 filed the charge on July 2, 1991.
Complaint and notice of hearing issued September 6, 1991,
alleging that Howell Insulation Company, Inc.2 violated Sec-
tion 8(a)(1) and (5) of the Act by failing and refusing to fur-
nish Local 90 with information requested by it.3 Respondent
denies the commission of any unfair labor practices.
All parties4 were represented at the hearing and were af-
forded full opportunity to be heard and to present evidence
and argument. Briefs were duly filed. On the entire record,
including my observation of the demeanor of the witnesses,
and after giving due consideration to the briefs, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that
Respondent was, at all times material, an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local 90 and International Association of Heat & Frost
Insulators and Asbestos Workers Local 785 are now, and
have been, at all times material, labor organizations within
the meaning of Section 2(5) of the Act.
1358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Howell Corp., Howell Insulation, Howell Environmental Serv-
ices, and Howell Limited were entities split up for insurance pur-
poses but considered as one entity for purposes of application and
enforcement of Howell’s collective-bargaining agreement with Local
78.
III. THE UNFAIR LABOR PRACTICES
A. Background
Howell, at all material times, has been a corporation with
an office and place of business in Birmingham, Alabama.
From this place of business, Howell contracted to perform
thermal insulation and asbestos abatement work at projects
located in Alabama and neighboring States from 1974 to
1992.
Throughout its existence, Howell was signatory to several
8(f) agreements with Local 78, the most recent of which ex-
pired on June 30, 1991. That collective-bargaining agreement
was not renewed.
Article 1 of the most recent collective-bargaining agree-
ment between Howell and Local 78 contains the following
provision:
Article 1
It is hereby agreed that the provisions of this agree-
ment shall be binding upon the Employers individually
and upon the membership of the Union individually and
as members of the Union within the jurisdictional area
of Asbestos Workers Local 78 consisting of the fol-
lowing fifty counties in the State of Alabama:
Autauga Lauderdale
Barbour Lawrence
Bibb Lee
Blount Limestone
Bullock Lowndes
Calhoun Macon
Chambers Madison
Cherokee Marengo
Chilton Marion
Clay Marshall
Cleburne Montgomery
Colbert Morgan
Coosa Perry
Cullman Pickens
Dallas Pike
DeKalb Randolph
Elmore Russell
Etowah St. Clair
Fayette Shelby
Franklin Sumter
Greene Talladega
Hale Tallapoosa
Jackson Tuscaloosa
Jefferson Walker
Lamar Winston
The Employer further agrees that on all operations
outside the chartered territory of the Union he will
abide by the rates of pay, rules, and working conditions
established by the collective-bargaining agreement be-
tween the local insulation contractors and the local
Union in that jurisdiction. The Employer may send a
Journeyman (Job Foreman) on any one operation within
the jurisdiction of another local Union, and in the event
of insufficient supply of local labor in that territory,
such additional employees as may be necessary. Such
employees shall receive, in addition to transportation
cost, the wage rate, board or travel allowance highest
in either of the two Locals, but shall receive the fringe
benefits, such as Welfare, Pension and Vacation Funds,
etc., of their home Local, which shall be payable to
their home Local in accordance with its admission of
same.
Article 1 is not peculiar to the labor agreement between
Local 78 and Howell. On the contrary, all of the employers
who sign agreements with locals of the Asbestos Workers
Union, throughout much of the United States, have histori-
cally signed contracts containing similar provisions. The
practice, under article 1, is for a company who is signatory
to such a labor agreement, who successfully bids on a project
in the jurisdiction of a local other than the one with which
it has signed the agreement, is permitted to send one em-
ployee (presumably a foreman) to the project, then obtain all
other employees by referral from the local in whose jurisdic-
tion the project is located. He must then operate under the
terms and conditions of employment of the labor agreement
in effect in the jurisdiction of the local where the project is
located. A business manager or other officer of that local is
responsible for policing and for enforcement of that labor
agreement. This has been the procedure universally practiced
since about 1950.
Howell,6 over the years, has bid on and won jobs on a
large number of projects outside the jurisdiction of Local 78.
According to the General Counsel’s credited witnesses, he
worked in accordance with the provisions of article 1 of his
collective-bargaining agreement with Local 78, i.e., he ap-
plied the terms of the collective-bargaining agreement, in ef-
fect, in the jurisdiction where the project was located, to his
employees who were members of the local who had jurisdic-
tion at that location, rather than applying the terms of his
contract with Local 78.
Fred Raulerson, the business manager for Asbestos Work-
ers Local 13, Jacksonville, Florida, testified that in 1984 he
worked on the Owen, Illinois papermill project in Fayette-
ville, Georgia, where, for a time, he was the foreman. How-
ell Insulation had the contract and Robert Howell, John
Howell’s brother, was superintendent on the project. On this
occasion, Howell’s employees were members of Local 13
and contributions made by Howell on their behalf were sent
to their home local.
Documentation was also received into evidence indicating
that Howell was the contractor on numerous projects located
within Local 13’s jurisdiction in the years 1984 through 1991
and that on all of these projects Howell used Local 13’s
members and contributed on their behalf to Local 13’s vaca-
tion, pension, and apprenticeship funds and deducted dues
from their wages which it forwarded to Local 13. Fred
Raulerson credibly testified that Howell, during this period,
fully complied with the requirements of Local 13’s collec-
tive-bargaining agreement on pay and fringe benefits.
In April 1991, Howell Corporation was awarded a contract
in Local 13’s jurisdiction at a Georgia-Pacific papermill in
Paladka, Florida. Ted Thompson, one of Howell’s employ-
ees, advised Raulerson of the project and was eventually sent
1359HOWELL INSULATION CO.
there as foreman. Thompson was a member of Local 78 but
requested referrals from Local 13. Raulerson visited the job-
site and dealt personally with Rick Howell, John Howell’s
son, and with Thompson.
The Georgia-Pacific project lasted until July. No separate
agreement was necessary for this job because of article 1 of
Howell’s contract with Local 78.
Under Local 13’s collective-bargaining agreement, Howell
forwarded fringe benefit contributions and dues, on behalf of
its Local 13 employees, to Local 13. The fringe benefit re-
ports were prepared by Howell’s Yana Thomason. Checks
were signed by Sue Howell, wife of John L. Howell.
In May, one of Howell’s Local 13 employees was short
a couple of hours. The matter was straightened out on a local
level when Howell sent a check for additional dues to the
local. Sue Howell signed the check.
Carl Daniel Ellis, the business manager for Asbestos
Workers Local 90, testified and offered supporting docu-
mentation indicating that Howell Insulation, between 1984
and 1986 worked on one or more projects in Counce, Ten-
nessee. In accordance with article 1 of its collective-bar-
gaining agreement with Local 78, Howell sent one employee,
Charles McClendon, to the Counce project and had all other
employees referred to the project by Local 90 within whose
jurisdiction the project was located. Deductions were made
from all employees’ wages and sent to the Local to which
the employee belonged. Thus, contributions were made by
Howell to the National Asbestos Workers Medical, Pension,
and Retirement Funds and to various Local 90 funds, includ-
ing its Apprenticeship and Training Fund, and forwarded to
Local 90. Howell also paid referral and service fees to Local
90 and deducted dues from the wages of Local 90 members
and forwarded them to their local. Similar deductions were
made on behalf of McClendon and forwarded to Local 78.
John Riddick testified that he was the business agent for
Local 90 during the period of time that Howell was on the
Counce projects. He administered and policed the Local 90
collective-bargaining agreement under which Howell’s em-
ployees worked at Counce. Although Howell and Local 90
never signed a separate agreement, John Howell contacted
Reddick whenever he needed asbestos workers referred to the
Counce job. On the most recent Howell project at Counce,
which lasted about 3 months, from March until May 1986,
Riddick had a number of contacts with John Howell, Robert
Howell, and Susan Howell. He also had a conversation with
Howell Insulation’s bookkeeper concerning fringe benefit re-
ports.
According to Riddick, Howell obtained its most recent
project at Counce as a result of a subcontract from Flame
Refractories. Flame is a union company.
Don Cundiff, business manager for Local 86, Nashville,
Tennessee, testified that his local has had in effect, a series
of collective-bargaining agreements over the past 30 years
containing the same language as article 1 of the Local 78
contract. On August 25, 1986, an addendum was added to
the Local 86 contract providing that if the local union cannot
refer to the employer, the number of individuals desired
within 48 hours of the date and time the men were to report
for work, the employer may procure employees up to the
number desired without using the referral procedure.
Sometime prior to April 6, 1987, Howell was awarded a
contract covering a project in Cumberland City, Tennessee,
located within the jurisdiction of Asbestos Workers Local 86.
On that date, John Howell sent the following telegram to
Local 86:
This is to confirm our verbal order for 20 journeyman
insulator mechanics and 4 improvers for TVA job at
Cumberland City, TN. This project has liquidated dam-
age completion schedule and these men must be at job
by 7:00 am work time Wednesday, April 8, 1987. Fail-
ure to do so will force us to exercise the 48 hour clause
in your current working agreement as we man the job.
Clearly, John Howell, by the telegram, indicated to Local
86 that he considered both his company an Local 86 bound
by the provisions of the contents of Local 86’s most current
collective-bargaining agreement.
On April 20, 1987, John Howell wrote a letter to William
Mahoney, vice president of the Southeastern Conference of
the International Association of Heat and Frost Insulators and
Asbestos Workers located in Miami, Florida, complaining
about cost overruns on the Cumberland City job, and blam-
ing the losses sustained on employees referred to that job by
Local 86, on their poor work habits and on the disadvanta-
geous ratio of journeymen to improvers. He requested per-
mission to replace some of the least productive referrals with
travelers or members of Local 78. This letter further indi-
cates that Howell considered himself bound by the provisions
contained in the Local 86 contract and by article 1 of his
contract with Local 78.
Sometime after Howell’s April 20 letter, he received a call
from Mahoney who complained that certain Local 86 mem-
bers, on the Cumberland City job, had alleged that Howell
owed them money. In an undated letter, probably sent in late
April or early May 1987, Howell advised Mahoney that he
felt that Howell, not only did not owe any wages but was
in the process of ‘‘working up invoices for monies owed
Howell Insulation for failure [of Local 86] to abide by work-
ing agreement (Local 86) including but not limited to the fol-
lowing articles’’:
Article V—Flagrantly violated the cessation of work
portion of this article.
Article VI—Union recognizes employee need to
maintain an efficient operation.
Article VIII—Flagrant violation of work breaks.
Article XI—Violation of change shack requirements.
Article XIII—Violated reasonable notice when mem-
bers, including foremen quit job.
Article XV—Apparent violation here per discussion
with traveling member while he was on job.
Howell, in this letter, again recounted his displeasure with
the cost overruns which he again blamed on Local 86.
This letter is further evidence that Howell considered him-
self and Local 86 both bound by Local 86’s collective-bar-
gaining agreement.
On or before May 8, 1987, John Howell met with
Mahoney and the differences between Local 86 and Howell
Insulation were resolved. In a letter dated May 8, Howell
thanked Mahoney for his prompt response to the problem.
He also voiced his regret that the differences between Local
86 and Howell could not be resolved at the local level.
1360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 On May 7, 1987, Business Agent Danny Berlin filed a grievance
against Howell after Berlin’s son was fired. The record is unclear
as to the outcome of the grievance, but the absence of mention of
any other agreement, indicates that it was filed under the Local 86
collective-bargaining agreement.
On May 29, 1987, Howell Insulation sent three checks to
Local 86 for employee Jesse Walker who had one or more
of Howell’s paychecks bounce. Walker had refused to accept
replacement checks. The three checks included 2 hours’ dou-
ble time for each day that Walker had been without his
money, as apparently required under the Local 86 contract.
The cover letter, which accompanied the checks, included an
apology and was signed by Sue Howell. Thus, the problem
which did not result in the filing of a written grievance, was
settled between the parties on the basis of the provisions of
the Local 86 contract, just as though it were a grievance.7
On July 16, 1987, Local 86 wrote to Howell Insulation ad-
vising Respondent that eight of Howell’s Local 86 employ-
ees were due payment under article VIII of the Local 86 con-
tract for bad checks and that one of the eight was also due
payment under article XI of the Local 86 agreement for not
receiving his layoff check 1 hour before quitting time. On
October 7, 1987, Sue Howell replied to Local 86’s July 16
letter advising that all moneys due the listed employees had
been paid in full. This exchange of letters between Howell
and Local 86 reflects an acknowledgement on Howell’s part
that it was bound by the provisions of the collective-bar-
gaining agreement of the local in whose jurisdiction the
project was located, in this case, that of Local 86. This is
clear, despite the fact that Howell, at no time, signed a sepa-
rate agreement with Local 86.
The business manager for asbestos workers Local 55 of
Mobile, Pascagoula and Pensacola, Gerald Driskell, testified
that Local 55’s most recent collective-bargaining agreement
contains language similar to article 1 of the Local 78 agree-
ment. He referred to this provision as the extension language.
This agreement is effective from August 1, 1991, until July
31, 1993. Previous Local 55 contracts contained similar lan-
guage.
Driskell testified that the company he was working for,
R. N. Pyle Contracting, Inc. of Pensacola, Florida, bid and
won a contract to perform work at the Lynn Haven power
plant, located just outside Pensacola. Part of the work re-
quired the removal of asbestos, work which Driskell’s em-
ployer, the general contractor, did not perform. The super-
intendent of the general contractor therefore called the busi-
ness manager of Local 55, Driskell’s predecessor, Walter
Stanley, and told him of a large asbestos removal and instal-
lation contract that was available, that involved several miles
of piping. Stanley contacted four union companies, advised
them of the existence of the asbestos contract and all four
companies, Howell, North Brothers, Fletcher, and Anco bid
on the job. Howell was awarded the contract and performed
the installation work in accordance with Local 55’s collec-
tive-bargaining agreement and article 1 of its contract with
Local 78. However, Howell did not have the necessary li-
cense to do the asbestos removal part of the project whereas
the Universal Insulation Company did. Therefore, Universal
performed the asbestos removal while Howell did the rest.
Inasmuch as Universal was nonunion, it could not avail
itself of the benefits of article 1. Local 55, therefore, required
Universal to sign a project agreement whereby it agreed to
abide by the Local 55 local labor agreement. Stanley signed
on behalf of the Union and John E. Howell (Rick Howell),
John L. Howell’s son, signed on behalf of Universal on Sep-
tember 25, 1990. Subsequently, both Universal and Howell
worked on the Lynn Haven project together and members of
Local 55, who were employed by these contractors, had con-
tributions made on their behalf, by both contractors, to Local
55.
Driskell testified concerning a number of documents re-
ceived into the record. One such document reflected the fact
that Universal Insulation, under the September 25, 1990
project agreement deducted dues and benefit payments and
forwarded them to Local 55 on behalf of its Local 55 em-
ployees for the five payroll periods ending September 30
through October 28, 1990. This document was signed for
Universal by Yana Thomason of ‘‘Personnel.’’
A second document received into the record reflected that
Howell Insulation Co. made the same contributions, for the
same period of time, for its Local 55 employees and for-
warded them to Local 55 on their behalf. This document was
also signed by Thomason. Howell, unlike Universal, had not
signed a separate project agreement because the extension
language contained in article 1 of its contract with Local 78
was considered sufficient to bind Howell to Local 55’s col-
lective-bargaining agreement. Although the checks for con-
tributions were separate—one from Howell and one from
Universal, they were both signed by Sue Howell and were
received on the same day, in the same envelope.
On March 11, 1991, Rick Howell wrote to Driskell, on
Howell stationery, advising him that he had recently been
awarded a contract by Combustion Engineering for a project
located at the Lansing Smith Generating Station, that work
was to begin April 1, and that he would require approxi-
mately five insulators.
Howell further advised Driskell that Howell was not li-
censed to perform asbestos removal in Florida and would
have to subcontract that portion of the project to Universal
Insulation. He then stated that he would like to get a project
agreement drawn up for Universal to perform the asbestos re-
moval job using Local 55 labor. He pointed out that this was
the procedure used the previous fall and that it had worked
out very well. Finally, he added that if such an arrangement
were agreeable, he would have someone from Universal exe-
cute the project agreement and return it to Driskell.
In accordance with Rick Howell’s request, a project agree-
ment was drawn up and signed by Driskell and John E.
Howell on March 13, 1991. Under this agreement, Universal
agreed to abide by the then current Local 55 collective-bar-
gaining agreement.
Just as on the Lynn Haven job, both Howell and Universal
worked on the Lansing Smith job. As before, Yana
Thomason prepared the fringe benefits reports for both How-
ell and Universal and Sue Howell forwarded checks on be-
half of both.
About December 1990, John Howell telephoned the busi-
ness manager of Asbestos Workers Local 46, John Wade,
and advised him that he had been awarded a contract at a
papermill just north of Chattanooga, Tennessee, within the
jurisdiction of Local 46. In accordance with the usual prac-
tice, Howell sent one union employee to the jobsite and
Local 46 referred the only member they had available be-
1361HOWELL INSULATION CO.
8 Hereinafter, all dates are in 1991 unless noted otherwise.
cause the other members were all employed. When Wade
told Howell that he could only refer one man but would get
him travelers to fill his needs, Howell requested permission
to bring in people. Wade agreed.
When the Local 46 member arrived at the jobsite, he was
hired. In accordance with the Local 46 contract, Howell de-
ducted from his wages, dues, and benefit contributions which
were sent to Local 46. Howell complied, in all respects, with
his obligations under article 1 of his contract with Local 78
as well as Local 46’s collective-bargaining agreement.
B. Recent Events
On April 19, 19918 Local 90’s Ellis noticed an advertise-
ment in the Memphis Commercial Appeal. It was a help
wanted ad for insulators and other workers for a project lo-
cated at Counce, Tennessee. Ellis called the number listed in
the newspaper and spoke with a person named Garry. The
previous February, one Garry from Howell Insulation had
called Ellis concerning a project at the TVA plant.
During his April 19 call, Garry told Ellis that the project
was under Universal Insulation, was not yet under way but
would be starting about the first week in May. The number
which Ellis had called to talk to Garry included an Alabama
area code. It was Ellis’ understanding, as of the date of his
call, that Universal was nonunion.
After determining that Universal had the job at Counce,
Ellis discussed this matter with James McDonald, business
manager with Local 78. McDonald told Ellis that Howell In-
sulation had had a contract at the Counce project and now
Universal was on that job. Ellis asked McDonald what the
relationship was between Howell and Universal. McDonald
replied that Howell and Universal were one and the same,
that Howell was the bargaining unit side and Universal was
nonunion. They then discussed a number of jobs that had
begun as Howell projects but later became Universal
projects. Ellis then asked McDonald if he would mind if he,
Ellis, filed a grievance, based on the fact that Universal had
taken over the Howell job at Counce. McDonald said that he
did not mind.
In June, Ellis again called the jobsite and was told that the
job was in progress as of June 17 and that it was a precipi-
tator job which consisted of applying fiberglass insulation
with metal covering, work which, under article 1 of Local
78’s contract, would have been performed by members of
Local 90. On learning what kind of work was being done at
Counce, Ellis filed a grievance with the Trade Board and on
June 19 he also wrote a letter to John L. Howell charging
Howell with being in violation of their collective-bargaining
agreement by having Universal perform work that should
have been performed in accordance with their agreement.
Ellis advised Howell that his letter should be regarded as a
grievance and requested that Howell answer 81 questions
which were attached to the grievance and which were de-
signed to clarify the connection between Universal Insulation
and Howell so that the grievance could be processed.
On June 27, John L. Howell replied to Ellis’ request for
information. He denied that Howell Insulation had violated
the collective-bargaining agreement articles cited by Ellis in
his June 19 letter. He also denied that there was any obliga-
tion on his part to supply the information that Ellis had re-
quested. The last paragraph read:
We stand ready and willing, as always, to process prop-
er grievances under the agreement. If you wish to meet
over a proper grievance, please inform us.
On June 30, Howell’s collective-bargaining agreement
with Local 78 expired. It was not renewed.
On July 2, Ellis filed the charge in the instant proceeding,
alleging a violation of Section 8(a)(1) and (5) based on How-
ell’s refusal to comply with Local 90’s request for informa-
tion.
Since Howell had refused to provide to Local 90 the infor-
mation which Ellis felt he needed to process his grievance,
Ellis pursued the matter as well as he could through the utili-
zation of other sources of information. At the Memphis Pub-
lic Library and Information Center Ellis researched the How-
ell companies and Universal Insulation. He found that Sue
Howell was secretary-treasurer of both companies, that the
Howell family members served on both boards of directors,
that both shared the same address, employed the same ac-
counting firm and were in the same type of business.
In addition to his uncovering the specific information
about ties between the Howell companies and Universal,
Ellis was informed by several witnesses who testified at the
hearing that it was common knowledge throughout the indus-
try that John L. Howell owned both companies and that the
Howell companies were operated on a union basis whereas
Universal was operated as a nonunion company.
Several instances came to light where, on different
projects, Howell was initially the contractor, and later Uni-
versal took over, either as the second contractor for building
purposes or as a maintenance contractor. It appeared to Ellis
that this was what occurred at the Counce project and his at-
tempt to obtain information about Howell and Universal was
in pursuance of a clarification as to what had occurred there.
Conclusions
The above-cited facts clearly indicate that, for the past
several years, Respondent was signatory to collective-bar-
gaining agreements with Local 78; that it had abided by all
of the provisions of those collective-bargaining agreements
including article 1 which required that when Howell per-
formed on a project outside the geographical jurisdiction of
Local 78, it would abide by the terms and conditions of the
Asbestos Workers’ collective-bargaining agreement in effect
in the jurisdiction where the project was located.
Respondent, for years, had obtained work on projects lo-
cated outside the jurisdiction of Local 78 and, in each case,
followed the provisions of article 1, without questioning its
applicability to his situation. Thus, on successfully bidding a
job, Howell would immediately contact the local in whose
jurisdiction the project was located. He would advise that
local’s business agent that it was Howell’s job and that so
many men would be needed. The business agent would then
refer that number of the local’s members to work as Howell
employees on the job. While these employees were employed
by Howell, they worked under the terms and conditions of
employment as provided in their home local’s collective-bar-
gaining agreement, not Local 78’s collective-bargaining
agreement. In each case, the business agent of the local
1362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Although neither the General Counsel nor Respondent cited any
Board cases in point, and I could find none, see McKinstry Co. v.
Sheet Metal Workers Local 16, 859 F.2d 1382 (9th Cir. 1988), for
the application of the third party beneficiary theory to a Sec. 301
suit involving two separate locals.
10 NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); Assn. of
D.C. Liquor Wholesalers, 300 NLRB 224 (1990).
11 Island Creek Coal Co., 292 NLRB 480 (1989); Ohio Power Co.,
216 NLRB 987 (1975).
12 Id.
13 Citing M. Scher & Son, 286 NLRB 688 (1987).
where the project was located was recognized as the collec-
tive-bargaining representative of Howell’s employees, re-
sponsible for policing and administering that local’s contract.
Local 78 did not take responsibility for policing collective-
bargaining agreements on jobs located outside its jurisdiction.
Whenever problems arose on a job outside of Local 78’s ju-
risdiction, Howell would seek out the local business agent to
help solve the problem. Similarly, if the local who had re-
ferred its members to Howell had complaints or grievances
with the way Howell was treating these employees, its busi-
ness agent would contact Howell to resolve the problem.
Howell’s employees, members of the local, always relied
upon their own local’s business representative to resolve any
questions they had concerning wages, or terms and condi-
tions of employment, never on Local 78’s business agents or
officers.
Howell’s project in Counce, Tennessee, was handled the
same as all the others. When Respondent was awarded the
job, it immediately contacted Local 90, since the project was
within its jurisdiction. It advised Local 90 that it was on the
project, requested and was referred members of that local to
work as Respondent’s employees on the project. In accord-
ance with article 1 of Local 78’s collective-bargaining agree-
ment, Howell applied Local 90’s contract to his employee-
members of Local 90 and accepted Local 90’s business agent
as the individual responsible for policing and administering
the Local 90 collective-bargaining agreement and for rep-
resenting its employees on the job.
The facts of this case clearly indicate that historically Re-
spondent has always accepted and enjoyed the benefits of its
collective-bargaining agreement with Local 78, including ar-
ticle 1. When engaged in construction projects outside of
Local 78’s jurisdiction, it always worked through the local
in whose jurisdiction the project was located and accepted
and dealt with that local as the collective-bargaining rep-
resentative of the employees it referred. Respondent cannot
now deny this relationship. I find that Respondent’s relation-
ship with Locals at projects located outside the jurisdiction
of Local 78 was exactly the same as its relationship with
Local 78 at projects located within the jurisdiction of Local
78.9
At the Counce project, Local 90 was the collective-bar-
gaining representative of Respondent’s employee-members of
that local. Local 90’s business representative had a duty to
these employees to police and administer the collective-bar-
gaining agreement to which Respondent had bound itself.
Collaterally, it had the obligation to seek whatever informa-
tion was necessary to effectively perform its function as the
collective-bargaining representative. On its part, Respondent
had a general obligation to provide the information requested
as long as it was relevant and useful to the Union in ful-
filling its statutory duties and responsibilities as the employ-
ees’ exclusive collective-bargaining representative.10 Local
90 requested information from Howell and it was refused.
Respondent refused to provide the information requested
by Local 90 on several grounds:
1. Respondent argues that Local 78, not Local 90, was the
exclusive bargaining agent of Howell’s employees and Local
78 did not authorize or direct Local 90 to make the request
for information.
Contrary to Respondent’s argument, however, I have
found, supra, that Local 90 was, by virtue of article 1 of the
Local 78 collective-bargaining agreement, the exclusive bar-
gaining agent for Howell’s Local 90 employees on the
Counce project. Moreover, the facts indicate that Local 90,
through Ellis, sought and obtained authorization to file a
grievance against Howell.
2. Respondent argues that Local 90’s right to information,
if any, was strictly contractual and not the proper subject of
8(a)(5) action and that its failure to grieve and arbitrate its
dispute, as required under that agreement, precludes it from
any relief.
Contrary to Respondent’s argument, it is the Act that re-
quires an employer to furnish information requested by a
union that is the bargaining representative of its employees,
not the agreement between an employer and a union11 and
it is not required that there be grievances or that the informa-
tion sought be such as would clearly dispose of them. The
union is entitled to the information in order to determine
whether it should exercise its representative function in the
pending matter, that is, whether the information will warrant
further processing of the grievance or bargaining about the
disputed matter.12
3. Finally, Respondent takes the position that assuming,
arguendo, that Howell had a statutory duty to provide Local
90 information, Local 90 lacked knowledge of sufficient ob-
jective facts concerning Howell and Universal’s relationship
to establish the relevance of its request and the relevance of
the request must be determined at the time it was made.13
Contrary to Respondent’s position, the record indicates
that Local 90 had more than a mere suspicion that Universal
and Howell were a single employer or that Universal was the
alter ego of Howell. Thus, Ellis discovered through discus-
sions with Garry, that Universal was undertaking a construc-
tion project at a cite where Howell had previously been the
contractor. This was confirmed by the Local 78 business
agent who also advised Ellis that Howell and Universal were
one and the same and that Howell was the bargaining unit
side and Universal was the nonunion side. The Local 78
business agent informed Ellis of a number of jobs which had
started out as Howell projects and finished as Universal jobs.
After determining that the type of work being done on the
Counce job was the kind performed by Local 90 members,
Ellis filed his grievance with the Trade Board and with How-
ell, at the same time requesting information and advising
Howell that the information sought was designed to clarify
the connection between Universal and Howell so that the
grievance could be processed.
Following Howell’s refusal to provide the information
sought by Local 90, Ellis undertook an investigation in order
to obtain additional information concerning the connection
1363HOWELL INSULATION CO.
14 Respondent relies on M. Scher & Son, supra for the proposition
that a union, when it requests information concerning two companies
which it believes to be a single entity or in an alter ego situation,
must have an objective, factual basis for its belief, at the time of
the request and that information obtained subsequent to the request
may not be relied on. I do not believe Scher stands for this propo-
sition. Indeed, as long as the request for information remains out-
standing, it would appear that the union is free to perfect its case,
right up to the close of the hearing. Cf. Ohio Power Co., supra.
15 George Koch & Sons, Inc., 295 NLRB 695 (1989).
16 Id.
between Howell and Universal. Through this investigation,
he determined that certain members of the Howell family
served as officers and on the board of directors of both com-
panies, that they shared the same address, employed the same
accounting firm and, of course, were in the same business.
By talking with people in the industry and by obtaining doc-
umentation from state governmental and other sources such
as union records, Ellis determined that John L. Howell
owned both companies and that a number of employees, at
one time or another, worked for both companies.
Contrary to Respondent’s position, I find that Local 90, at
the time of its request, and at all times subsequent, had an
objective, factual basis for believing that Howell and Uni-
versal were a single employer or that Universal was an alter
ego of Howell.14 It was therefore justified in requesting the
information it did15 and Respondent was in violation of Sec-
tion 8(a)(1) and (5) in refusing to furnish it.16
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Locals 90 and 78 are labor organizations within the
meaning of Section 2(5) of the Act.
3. Respondent has failed and refused to furnish Local 90
with certain relevant information necessary for it to ascertain
Respondent’s compliance with the contractual obligations as
specified in article 1 of the collective-bargaining agreement
with Local 78 and has thereby failed and refused to bargain
collectively with the representative of its employees. Re-
spondent thereby has been engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act.
THE REMEDY
Having found Respondent engaged in an unfair labor prac-
tice, I find it necessary to order it to cease and desist and
to take certain affirmative action designed to effectuate the
policies of the Act.
The order will require Respondent to furnish Local 90
with answers to the questionnaire published in appendix B
(omitted from publication) to this decision.
[Recommended Order omitted from publication.]