H&R Industrial Services, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jun 1, 2007

04-CA-034848 (N.L.R.B. Jun. 1, 2007)

JD–39–07
Allentown, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
H & R INDUSTRIAL SERVICES, INC.
and Case 4-CA-34848
UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA,
METROPOLITAN REGIONAL COUNCIL
OF CARPENTERS, SOUTHEASTERN
PENNSYLVANIA, STATE OF DELAWARE
AND EASTERN SHORE OF MARYLAND
Jennifer Roddy Spector, Esq., for the General Counsel
Stephen J. Holroyd, Esq., for the Charging Party
David R. Keene, II, Esq., for the Respondent
DECISION
STATEMENT OF THE CASE
Jane Vandeventer, Administrative Law Judge. This case was tried on March 6,
2007, in Philadelphia, Pennsylvania. The complaint alleges Respondent violated
Section 8(a)(5) of the Act by failing and refusing to provide relevant and necessary
information to the Charging Party Union. The Respondent filed an answer denying the
essential allegations in the complaint. After the conclusion of the hearing, the parties
filed briefs which I have read.
At the time of the trial herein, this case had been consolidated for trial with
another matter on a similar separate complaint allegation, involving a different
employer, Heartland Development Co., Case 4-CA-34860. Shortly after the record
herein opened, the General Counsel moved to sever Case 4-CA-34860 from the instant
case. No party objected, and I granted the General Counsel’s motion to sever Case 4-
CA-34860, and remanded that case to the Regional Director for Region 4. This
decision applies solely to the Respondent in the case caption above.
Based on the testimony of the witnesses, including particularly my observation of
their demeanor while testifying, the documentary evidence, and the entire record, I
make the following
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FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of business in Allentown,
Pennsylvania, where it is engaged in the construction industry as a plumbing, heating,
and air conditioning contractor. During a representative one-year period, Respondent
purchased and received at its Allentown facility goods valued in excess of $50,000
directly from points outside the Commonwealth of Pennsylvania. Accordingly, I find, as
Respondent admits, that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The Charging Party (the Union) is a labor organization within the meaning of
Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICES
A. The Facts
There are very few disputed facts in this case. It is undisputed that Respondent
is signatory to a memorandum agreement binding it to the Union’s area collective
bargaining agreement with the Philadelphia and Vicinity Millwright Contractors
Association. The current collective bargaining agreement, herein called the Agreement,
is effective by its terms from July 1, 2003, through June 30, 2008. On page 3 of the
Agreement, Article 2(e) provides as follows:
To protect and preserve for the employees covered by this Agreement, all
work they have performed and all work covered by this Agreement, and to
prevent any device or subterfuge to avoid the protection and preservation
of such work, it is agreed as follows:
If the contractor performs on-site construction work of the type covered
by this Agreement under its own name, or the name of another as a
corporation, company, partnership, or other business entity including a
joint venture, where the contractor through its officers, directors, partners
or owners exercises directly or indirectly management control, the terms of
this Agreement shall be applicable to all such work.
It is also undisputed that Respondent received from the Union a letter dated July
26, 2006, requesting certain information about its operations and the operations of a
similarly named company, H & R Maintenance (herein called Maintenance), and that
Respondent did not provide the requested information to the Union.
The record evidence shows that in May 2006, an auditor for the health and
welfare trust fund which the Union administers jointly with employers under the
Agreement was at Respondent’s facility performing a routine audit of employees’ hours
and trust fund contributions. The auditor, Brandon Galloway, saw a truck at the facility
bearing the name “H & R Maintenance.” When he inquired about Maintenance, he was
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told that it performed duct work, i.e., work which was not covered under the Agreement.
Nevertheless, Galloway informed Bob Pierce, who is an assistant to the Union’s
executive secretary, of the facts he observed at Respondent’s facility.
Within a month or so, an organizer and representative of the Union named
Timothy Eubank was at a jobsite in Allentown called the Kraft-Nabisco jobsite. He
observed trucks at the jobsite which were marked with “H & R”, but Eubank was unable
to see whether the trucks were marked with Respondent’s name or the name of
Maintenance. Eubank was told that employees on the jobsite who were performing
millwright work covered under the Agreement had stated to other subcontractors that
they worked for “H & R.” Eubank reported these experiences to Bob Pierce and
Michael Tapken, another assistant to the Union’s executive secretary. Tapken then
investigated Maintenance by searching the Pennsylvania corporation records as well as
other internet sites to see if he could find the address and the officers of Maintenance.
Tapken found that both Respondent and Maintenance shared the same address and
were owned by the same individual, Robert Durnan.
Tapken telephoned Respondent’s office and spoke with admitted supervisor
Michael O’Keefe. Tapken reminded O’Keefe that Respondent is signatory to the
Agreement, and was therefore obligated to have a surety bond guaranteeing benefit
payments for the Kraft-Nabisco jobsite. O’Keefe stated that Maintenance was a
“different company.” Tapken stated that Maintenance was obligated to abide by the
contract because of its relationship with Respondent. O’Keefe then requested owner
Robert Durnan to join the telephone call. Both O’Keefe and Durnan stated that
Maintenance was a separate company, and that it had nothing to do with Respondent.
Following this phone call, Tapken informed Bob Pierce of all the facts he had
gathered as well as what happened when he telephoned Respondent. Pierce testified
that he believed the facts justified further investigation to see if in fact Maintenance was
the same employer or an alter ego of Respondent, and therefore subject to the
Agreement in the same manner. On July 26, 2006, Pierce sent Respondent a letter
requesting information about Maintenance and its relationship to Respondent. There is
no dispute that the letter was received by Respondent. The letter contained 79
requests for such information as is commonly used to provide a basis for establishing
single employer or alter ego status. The requests included ownership, officers and
agents of both companies, type of business, geographic area, addresses, location of
accounts and other corporate records, service providers, financial and contractual
interrelationships between the two companies, tools and equipment ownership and/or
arrangements, customers, work performed, employees, and labor relations of both
companies. As a preface to the requests for information, the letter also stated the
following reasons for the requests:
We have recently learned and have reason to believe that your company
is affiliated or otherwise related to H & R Maintenance, a firm which does
not have a collective bargaining relationship with our labor organization.
As I know you can well appreciate, the recent influx of non-union and
double-breasted companies may have a significant impact on our efforts
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to administer and police compliance with our existing collective bargaining
agreement. To enable us to satisfy our obligation to service and protect
the employment rights of our members, it is necessary that this
organization request that you promptly answer the following questions:
After receiving the information request, Respondent did request a copy of the
Agreement, which was provided by the Union. It is undisputed that no response was
received by the Union to its information request, and no information was provided by
Respondent.
B. Positions of the Parties
General Counsel argues Respondent violated Section 8(a)(5) of the Act by failing
to provide the requested information to the Union. The Agreement clearly provides that
signatory employers who act through double-breasted or other disguised entities to
perform work covered under the Agreement will still be obligated to apply the terms of
the Agreement to such operations. The Union sought information which was relevant
and necessary to the enforcement of this provision of the Agreement when it requested
information concerning the relationship between Respondent and Maintenance.
General Counsel contends that the information which came to its attention in May
through July of 2006 reasonably led it to believe that Maintenance was performing work
covered under the Agreement, and that it was related to Respondent. General Counsel
further contends that the Union sufficiently supported the reasons for its information
request in its letter to Respondent, and that Respondent therefore had an obligation to
provide the information.
Respondent argues that the Union failed to provide a sufficient reason for its
information request, that the information request was overbroad and burdensome, that
the request was a standardized one not tailored to Respondent’s specific situation, that
the Union had some of the information already, and finally that the Union could have
obtained the information from other sources. Respondent argues that it has no
obligation to provide the Union with the requested information.
C. Discussion and Analysis
It is long-established law that the duty to bargain in good faith embodied in
Section 8(a)(5) of the Act includes the obligation of employers to provide their
employees’ collective bargaining representatives with requested information which is
relevant and necessary to the representative’s duty to bargain on behalf of employees.
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). Such information may be needed
for bargaining, for administering and policing collective bargaining agreements, for
communicating with bargaining unit members, or for preserving unit employees’ work,
among other reasons. The requested information at issue in this case falls into the
categories of policing and administering the Agreement and of preserving unit
employees’ work. Information requests concerning possible double-breasting or alter
ego arrangements by signatory employers have been dealt with by the Board on many
occasions, and have been found to be relevant to a union’s duty to represent
employees. Since much of the information relevant to the structure of the employer
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does not directly relate to bargaining unit employees, this information falls largely into
the category of information about non-bargaining unit issues, and is therefore subject to
the Board’s requirement that there be a justification for the information request. See,
e.g., Bentley-Jost Electric Corp., 283 NLRB 564 (1987).
The General Counsel established that the Union’s information about
Maintenance working out of the same facility as Respondent, its information about
Maintenance performing millwright work on the Kraft-Nabisco jobsite, and its discovery
of the common addresses and common ownership of the two companies clearly gave
rise to its reasonable belief that there might be an alter ego or double-breasting
relationship between the two companies. This evidence was undisputed. I find that the
Union had a reasonable belief that Respondent and Maintenance were closely related
companies.
There is no dispute that the Union requested information concerning the two
companies’ relationship by letter on July 26, 2006, and that Respondent refused to
provide any information in response. Several of the questions in the letter referred to
Respondent’s employees, their work and their skills. These questions are
presumptively relevant and require no justification, since they relate to bargaining unit
employees. They should have been answered in any event. As to those questions,
there is no doubt that Respondent violated Section 8(a)(5) of the Act by refusing to
provide information, and I so find.
A majority of the questions, however, relate to Respondent and Maintenance,
and their interrelationship. Under Board law, these information requests require the
Union to state a reasonable objective basis for believing that an alter ego relationship
exists. Shoppers Food Warehouse, 315 NLRB 258, 259 (1994). Board law holds that
“the requesting union need not inform the signatory employer of the factual basis for its
requests, but need only indicate the reason for its request.” Corson and Gruman Co.,
278 NLRB 329, 334 (1986), enfd. 811 F.2d 1504 (4th Cir. 1987). In its July 26, 2006,
letter, the Union stated the reason for its request, its belief that Maintenance might be
related to Respondent and its need to police the Agreement. In addition, the Union, by
Michael Tapken, had informed Respondent by telephone that it took the position that
the unit work being done by Maintenance at the Kraft-Nabisco jobsite was covered
under the Agreement because both companies were owned by the same person and
operated out of the same facility. Tapken thus provided Respondent with two facts
upon which the Union’s belief was based.
While under Board law, there is no need to spell out in the information request
itself the factual basis for the belief, there is precedent in the Third Circuit which
requires a union to “do more than state the reason” for its information request. The
Third Circuit’s standard requires a union tell an employer “of facts tending to support” it
request for non-unit information. Hertz Corp. v. NLRB, 105 F.3d 868, 874 (3d Cir.
1997). The Union’s letter of July 26, 2006, clearly satisfies the Board’s standard by
stating its belief that Respondent may have a non-union alter ego or double-breasted
company performing some of its work. In addition, the evidence as a whole, including
Tapken’s statement by telephone to Respondent’s managers of two important facts
supporting its belief – the shared facility and common ownership – demonstrates that
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the Union also satisfied the Third Circuit’s more demanding standard.1
In any event, the facts underlying the Union’s belief about the relationship
between the two companies, as well as the reasons supporting its information request,
were communicated to Respondent in great detail at the hearing herein on March 6,
2007. Whether the Respondent’s duty to respond to the Union’s information request
runs from July 26, 2006, or from March 6, 2007, the remedy would be the same.
Respondent would in either case be ordered to provide the requested information.
Respondent’s additional contention that the information request was overbroad
and burdensome cannot avail it. It is an employer’s duty to raise this issue when it
receives a request. The burden was on the employer to state to the Union that it
considered the request burdensome, and to bargain about arrangemens to satisfy the
request. Martin Marietta, 316 NLRB 868 (1995). Nor can Respondent escape its own
duty to provide information by speculating or assuming that the Union has access to the
information from other sources. See, e.g., King Soopers, 344 NLRB No. 104 (2005),
enfd. 476 F.3d 843 (10th Cir. 2007); Kroger Co., 226 NLRB 512, 513-14 (1976).
Thus, I find that the General Counsel has established that the Union had a valid
reason for its request to Respondent for information which included information about
non-unit issues, and furthermore, that General Counsel communicated both the reason
and some factual bases for the request to Respondent. In view of Section 2(e) of the
Agreement quoted above and the reasons and supporting facts advanced by the Union,
I find that the requested information was both necessary and relevant to the Union’s
representation of employees. I further find that the Union communicated its belief, its
reasons, and at least two supporting facts to Respondent in justification of its
information request. It is undisputed, and I find, that Respondent provided no
information in response to the request. I find that Respondent has proven no defense
for its failure to provide the requested information.
In summary, I find that by failing and refusing to provide necessary and relevant
information to the Union which was requested by letter on July 26, 2006, Respondent
has violated its duty to bargain in good faith, and has violated Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. By failing and refusing to provide the Union, in writing, with the information
requested in the Union’s letter of July 26, 2006, Respondent has unlawfully refused to
bargain with the Union and has violated Section 8(a)(5) and (1) of the Act.
2. The violation set forth above is an unfair labor practice affecting
commerce within the meaning of the Act.

1 Chairman Battista and Member Schaumber agree with the more demanding standard
described. See, e.g., Contract Flooring Systems, 344 NLRB No. 117 (2005).
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THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it be required to cease and desist therefrom and to take certain
affirmative action necessary to effectuate the policies of the Act. I shall recommend that
Respondent be ordered to furnish the requested information to the Union, and to post
an appropriate notice.
On these findings of fact and conclusions of law and on the entire record, I
issue the following recommended2
ORDER
The Respondent, H & R Industrial Services, Inc., its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with United Brotherhood of Carpenters
and Joiners of America, Metropolitan Regional Council of Carpenters, Southeastern
Pennsylvania, State of Delaware and Eastern Shore of Maryland by failing and refusing
to provide the Union with relevant and necessary information requested by the Union in
its letter dated July 26, 2006.
(b) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act.
(a) Forthwith furnish the Union with the information requested in its letter of
July 26, 2006.
(b) On request, bargain collectively in good faith with the Union with regard to
wages, hours, and other terms and conditions of employment of employees in the
appropriate unit specified in the collective-bargaining agreement between Respondent
and the Union which agreement is in effect through June 30, 2008.
(c) Within 14 days after service by the Region, post at its Allentown,
Pennsylvania, location copies of the attached notice marked “Appendix.” Copies of the
notice, on forms provided by the Regional Director for Region 4, after being signed by
the Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where

2 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 purposes.
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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. In the event that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by the Respondent at any time
since July 26, 2006.
(d) Within 21 days after service by the Region, file with the Regional Director
a sworn certification of a responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
Dated, Washington, D.C., June 1, 2007.
____________________
Jane Vandeventer
Administrative Law Judge
JD–39–07
Allentown, PA
APPENDIX
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 Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to bargain collectively with United Brotherhood of Carpenters and Joiners
of America, Metropolitan Regional Council of Carpenters, Southeastern
Pennsylvania, State of Delaware and Eastern Shore of Maryland by refusing to furnish the
Union with the information requested in the Union’s letter of July 26, 2006.
WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL furnish the Union with the information requested in its letter to us of July 26, 2006.
H & R INDUSTRIAL SERVICES, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations
Act. It conducts secret-ballot elections to determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a
charge or election petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
615 Chestnut Street, One Independence Mall, 7th Floor
Philadelphia, Pennsylvania 19106-4404
Hours: 8:30 a.m. to 5 p.m.
215-597-7601.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 215-597-7643.