Lumber and Mill Employers Association

National Labor Relations Board - Board Decisions

Oct 22, 1982

265 N.L.R.B. 199 (N.L.R.B. 1982)

LUMBER AND MILL EMPLOYERS ASSOCIATION
Lumber and Mill Employers Association and Mill-
men, Cabinetmakers, Industrial Carpenters
Union Local No. 550; Millmen and Industrial
Carpenters Local No. 262; and Millmen, Cabin-
etmakers and Industrial Carpenters Union Local
No. 42, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO. Case 20-CA-
16290
October 22, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 2, 1982, Administrative Law Judge Jay
R. Pollack issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel
filed limited exceptions1 and an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Lumber and Mill Employers Association, San
Mateo, California, its officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order, as so modified:
1. Substitute the following for paragraph l(a):
"(a) Refusing to bargain collectively with Mill-
men, Cabinetmakers, Industrial Carpenters Union
Local No. 550; Millmen and Industrial Carpenters
Local No. 262; and Millmen, Cabinetmakers and
Industrial Carpenters Union Local No. 42, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, by refusing to supply the above-men-
tioned Unions with requested information which is
In response to the General Counsel's exceptions, we shall modify the
recommended Order to include a description of the collective-bargaining
unit and shall also modify the notice to specify the information to be fur-
nished the Unions upon request.
We disavow any reliance by the Administrative Law Judge on the
court of appeals decision in N.LR.B. v. Associated General Contractors of
California, Inc., 633 F.2d 766 (9th Cir. 1980), to the extent that that deci-
sion is inconsistent with Board precedent. See Iowa Beef Packers, Inc., 144
NLRB 615, 616 (1963).
265 NLRB No. 27
relevant to their functions as the exclusive bargain-
ing representatives of employees in the following
appropriate unit:
All employees covered under the terms of the
1981-1984 collective bargaining agreement be-
tween Lumber and Mill Employers Associ-
ation and Millmen, Cabinetmakers, Industrial
Carpenters Union Local No. 550; Millmen and
Industrial Carpenters Local No. 262; and Mill-
men, Cabinetmakers and Industrial Carpenters
Union No. 42, United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO."
2. Substitute the following for paragraph 1(b):
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF. THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to bargain collectively
with Millmen, Cabinetmakers, Industrial Car-
penters Union Local No. 550; Millmen and In-
dustrial Carpenters Local No. 262; and Mill-
men, Cabinetmakers and Industrial Carpenters
Union Local No. 42, United Brotherhood of
Carpenters and Joiners of America, AFL-
CIO, by refusing, upon request, to furnish in-
formation which is necessary and relevant for
the Unions' use in negotiating, policing, and
administering collective-bargaining agreements
as the exclusive bargaining representative of
employees in the following appropriate unit:
All employees covered under the terms of
the 1981-1984 collective bargaining agree-
ment between Lumber and Mill Employers
Association and Millmen, Cabinetmakers, In-
dustrial Carpenters Union Local No. 550;
Millmen and Industrial Carpenters Local
No. 262; and Millmen, Cabinetmakers and
Industrial Carpenters Union No. 42, United
Brotherhood of Carpenters and Joiners of
America, AFL-CIO.
199
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL, upon request, furnish the Unions
with a copy of those portions of our bylaws
which grant us authority to bargain collective-
ly for our members, and a list of the names
and addresses of our members, excluding sus-
taining members, performing work of the type
covered by the parties' 1981-84 agreement and
not already included in "Appendum A" of the
1981-84 agreement.
LUMBER AND MILL EMPLOYERS As-
SOCIATION
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge: I heard
this case in San Francisco, California, on March 30,
1982. Based upon an unfair labor practice charge filed on
June 2, 1981,' and an amended charge filed on July 28
by Millmen, Cabinetmakers, Industrial Carpenters Union
Local No. 550; Millmen and Industrial Carpenters Local
No. 262; and Millmen, Cabinetmakers and Industrial Car-
penters Union, Local No. 42, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO (the
Unions), the Acting Regional Director for Region 20 of
the National Labor Relations Board issued a complaint
and notice of hearing on July 31 against Lumber and
Mill Employers Association (Respondent). The com-
plaint alleges in substance that Respondent-acting in its
capacity as a multiemployer bargaining representative-
violated Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended, by refusing to furnish the
Unions with the following requested information: a copy
of Respondent's bylaws and a copy of Respondent's
roster of employer-members who perform work covered
by its collective-bargaining agreement with the Unions.
All parties were given full opportunity to appear, to
introduce relevant evidence, to examine and cross-exam-
ine witnesses, to argue orally, and to file briefs. Based
upon the entire record and from my observation of the
demeanor of the witnesses, I make the following:
FINDINGS OF FACT AND CONCLUSIONS
I. JURISDICTION
Respondent is a multiemployer association composed
of employers engaged in the milling of lumber and the
manufacture of lumber-related products, which exists for
the purpose, inter alia, of representing its employer-mem-
bers in negotiating and administering collective-bargain-
ing agreements with various labor organizations, includ-
ing the Unions.
I Unless otherwise stated, all dates hereafter refer to the year 1981.
During calendar year 1980, the employer-members of
Respondent purchased and received at their California
facilities goods and materials valued in excess of S50,000
from other enterprises located within the State of Cali-
fornia, each of which other enterprises received the said
goods and materials directly from points outside the
State of California. Accordingly, it admits, and I find,
Respondent to be an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11. LABOR ORGANIZATIONS
The complaint alleges, the answer admits, and I find
that the Unions are labor organizations within the mean-
ing of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
As discussed above, Respondent is a multiemployer as-
sociation which represents employers engaged in the
milling of lumber and the manufacture of lumber-related
products. The Unions and Respondent have been party
to a series of collective-bargaining agreements covering
the employees of Respondent's employer-members, the
most recent of which is effective from May 1, 1981, to
May 1, 1984.2 The instant case arose during the negotia-
tion of the 1981-84 agreement.
Prior to the expiration of their 1978-81 agreement, Re-
spondent and the Unions commenced negotiations for a
succeeding agreement.3 By letter dated March 8, prior to
the first negotiation session, Respondent submitted to the
Unions a list of 53 employers whom Respondent pur-
ported to represent in the upcoming contract negotia-
tions. On April 14, a second letter was prepared, which
letter deleted the name of one company from the list of
employers represented by Respondent. The April 14
letter was handed to the Unions' representatives at the
parties' first negotiation session on April 15.
At the April 15 session, Victor Van Bourg, attorney
for the Unions, asked whether Respondent represented
firms on the above list on the basis of a power of attor-
ney or on the basis of Respondent's bylaws. Frederick
W. Misakian, Respondent's executive vice president, re-
sponded that it was on the basis of Respondent's bylaws.
Van Bourg responded by requesting a copy of Respond-
ent's bylaws and a list of all employer-members of Re-
spondent who performed work under the contract. Van
Bourg indicated that this request was based upon the
AGC case.4 Van Bourg noted that one listed employer,
Higgins Lumber Company, was only listed at its San
Francisco location, although it also had a location in
2 I find the following unit appropriate for the purposes of collective
bargaining within the meaning of Sec. 9(b) of the Act:
All employees covered under the terms of the 1981-84 collective-
bargaining agreement between Respondent and the Unions.
a Millmen, Cabinetmakers, Industrial Carpenters Union Local No. 2095
was also a party to the 1978-81 agreement. However, that local union
was not party to the 1981 negotiations nor the 1981-84 agreement.
4 Associated General Contractors of California, 242 NLRB 891 (1979),
enfd. as modified 633 F.2d 766 (9th Cir. 1980). Van Bourg represented
the charging parties in the AGC case.
200
LUMBER AND MILL EMPLOYERS ASSOCIATION
Hayward, California.a Misakian told Van Bourg that Re-
spondent represented the firms based on its bylaws and
that he would discuss Van Bourg's request for the
bylaws with Respondent's attorney. Misakian told Van
Bourg, "We certainly are hopeful of reaching an agree-
ment, but we want to tell you that a strike against one
would be deemed a strike against all." Van Bourg asked
if Misakian really meant that a strike against one was a
strike against all. Misakian answered yes and Van Bourg
responded, "You are telling me a strike against one is a
strike against all, but you won't tell me who 'all' is."6
Misakian said that he would take the matter under ad-
visement and discuss it with Respondent's attorney.
The parties met again on April 24. At the beginning of
this meeting, Van Bourg reiterated his request for Re-
spondent's bylaws and a complete list of Respondent's
employer-members. Van Bourg again stated that he was
relying on the AGC case. Van Bourg told Misakian that
the Unions were not sure of the identity of Respondent's
members and that employer-members had apparently
withdrawn from membership in Respondent and joined
other multiemployer associations. Further, Van Bourg
expressed the concern that some companies were operat-
ing on a nonunion basis, which companies the Unions be-
lieved were connected in some manner with members of
Respondent. Van Bourg told Misakian that in past nego-
tiations the Unions had always received a complete list
of Respondent's membership. 7 With regard to the
bylaws, Van Bourg said the Unions wanted to make their
own determination as to whether the bylaws in fact
bound employer-members to the negotiations. Misakian
responded that, based on advice of counsel, Respondent
would not be furnishing the Unions with the requested
bylaws or membership roster.
On April 29, Robert M. Cassel, Respondent's attorney,
wrote Van Bourg stating, inter alia:
. . . since there is no issue in negotiations to which
the information you are seeking appears to be rele-
vant nor any dispute with respect to such informa-
tion, LAMEA is declining, at this time, to furnish it
to the above union.
If, however, the information you request becomes
arguably relevant to the negotiations or to any
pending contractual disputes between the parties,
' No serious discussion of Higgins Lumber's two locations took place
during contract negotiations. However, there is currently a pending
grievance concerning the application of the agreement to Higgins Lum-
ber's Hayward location.
6 Misaakian testified that Respondent has three categories of member-
ship: regular members, service members, and sustaining members. Regu-
lar members are those for whom Respondent provides labor relations
services, such as contract negotiations and representation in grievance
matters. According to Misakian, service members are not represented in
labor relations matters but subscribe to Respondent's bulletins and partici-
pate in its workers' compensation and group health insurance programs.
Sustaining members are persons or firms that give gratuitous contribu-
tions to Respondent. Misakian was not familiar with the identity of the
sustaining members. According to Van Bourg, the Unions were not
aware of the different categories of membership.
I Misakian had become Respondent's executive vice president in
March and, therefore, was involved as Respondent's chief negotiator for
the first time.
LAMEA will reconsider its denial of your request
and advise you accordingly.
On April 30, Van Bourg wrote Cassel alleging that
Misakian had given Cassel incorrect information regard-
ing the request for information. Van Bourg then stated
that, in view of the changes in Respondent's membership
and staff, he had requested Respondent's bylaws and a
list of Respondent's members not on the list submitted by
Misakian. Van Bourg further stated that he had fully ex-
plained the relevance of the Unions' request to Misakian.
On May 2, the Unions commenced a strike against C.
Markus Hardware, listed as a firm represented by Re-
spondent in the lists of March 8 and April 14.8 Further
negotiation sessions took place on May 27 and 29 and
June 18. At the June 18 session, Van Bourg repeated his
request for a complete list of Respondent's members and
for a copy of Respondent's bylaws. Misakian reaffirmed
Respondent's refusal to supply the information.
On June 23, Van Bourg wrote Cassel stating the fol-
lowing reasons for the Unions' request for Respondent's
bylaws and a list of all those members who perform
work covered by the agreement whose names were not
present on the previously submitted lists:
I. There has been tremendous fluctuation in the
identity of members of LAMEA with many defec-
tions, many employers quitting, some members ad-
vising they were not members even though they
were on the Roster and contained on the original
LAMEA Roster given.
2. I specifically asked whether members of
LAMEA would be bound to the Agreement by
virtue of a power of attorney or the By-Laws. We
were told they would be bound by virtue of the lan-
guage of the By-Laws, that is, by an agreement be-
tween the LAMEA member and LAMEA and its
members. We are entitled to know what the lan-
guage is that you believe binds them so we can
verify it for ourselves legally. In other words, we
must be able to determine whether that language is
sufficient to bind them to the negotiations or wheth-
er we might face a situation under which we ex-
ecute an Agreement and have numerous employers
trying to walk away from the Agreement that does
not bind them.
3. There are approximately 150 [sic] LAMEA
members on the Roster which was not given to us
until almost the expiration date of the contract. It
would be impossible under those circumstances, and
still is impossible, to verify membership.
4. It is obvious that the Roster of employer firms
is also important to determine problems such as
double-breasting,9 avoidance of contract and to de-
C. Markus Hardware was not included as a member firm in the
1981-84 agreement.
g See AGC. 242 NLRB at 892, fn. 5:
The term double-breasted is used to describe contractors who oper-
ate two companies, one unionized and the other nonunionized or
open-shop. Depending on the underlying facts and circumstances of
each case, the employees of both constituent companies may be held
Continued
201
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
termine questions of interpretation and application
of the contract.
We are not asking for names of members who do
not perform work in the industry; we are only
asking for the names of those employers who do
perform work in the industry whose names do not
appear on the Roster. We are not aware of different
classes of members in the LAMEA By-Laws and
for that reason it is also important that we see the
By-Laws as well as the Roster.
We are asking for those precise reasons which
were ruled germane in the AGC case, and we are
not trying to go beyond the AGC case.
On July 10, Cassel answered Van Bourg's letter, deny-
ing the relevancy of the requested information. Cassel
again took the position that, if the requested information
became "genuinely relevant" to the issues raised in nego-
tiations or contractual grievances between Respondent
and the Unions, Respondent would furnish "whatever in-
formation it possessed that was relevant to the scope of
the specific issues raised." On July 20, Van Bourg wrote
Cassel alleging that Cassel had misconstrued the Unions'
request and that Misakian had not given Cassel the cor-
rect facts.
In late July, the parties reached agreement on the
1981-84 collective-bargaining agreement. Respondent re-
quested that the Unions withdraw the instant unfair labor
charge. However, the Unions refused to withdraw the
charge and continued to request the subject information.
The preamble to the 1981-84 agreement contains the fol-
lowing language:
PREAMBLE
This Agreement is made and entered into by and
between the Lumber and Mill Employers Associ-
ation, representing and on behalf of those of its
member firms in the counties of Alameda, Contra
Costa, Marin, San Benito, Santa Clara, San Francis-
co, and San Mateo whose employees are legally
represented by one of the signatory Unions (firms
bound by this Agreement at the date of the signing
are listed on the applicable addenda, and firms sub-
sequently joining the Association whose employees
are legally represented by the Union shall come
under this Agreement upon notice to the appropri-
ate Union from the Association that such firm has
become a party to this Agreement), each of said
firms being hereinafter referred to as the Employer
and Millmen Locals 42, 262, and 550, affiliated with
the Bay Counties District Council of Carpenters or
the Santa Clara Valley District Council of Carpen-
ters, each of which are affiliated with the Millmen's
to constitute a single appropriate bargaining unit or the employees of
each may be held to form separate units. In the former case, the col-
lective-bargaining agreement covering the employees of the union-
ized firm may be held to cover the employees of the nonunion firm
as well; or the employer may be ordered to bargain on behalf of
both firms with the union which had represented the unionized por-
tion of such a double-breasted operation. See, for example, Don Bur-
gess Construction Corporation, 227 NLRB 765 (1977); R. L. Sweet
Lumber Company, 207 NLRB 529 (1973), enfd. 515 F.2d 785 (10th
Cir. 1975), cert. denied 423 U.S. 986.
46 Counties Conference Board, chartered by the
United Brotherhood of Carpenters and Joiners of
America, each of said Local Unions being herein-
after referred to as the Union. The geographical ap-
plication of this Agreement shall be extended to
other counties in Northern California in accordance
with the provisions of Section 1 hereof or otherwise
by agreement of the parties hereto.
Attached to the agreement as "Appendum 'A"' is a list
of the names and addresses of 31 employer-members of
Respondent bound by the agreement.10
B. Contentions of the Parties
The General Counsel contends that the requested in-
formation is presumptively relevant to the Unions' per-
formance as exclusive bargaining representative and, in
the alternative, that the information is potentially rele-
vant to the Unions' performance of negotiation and en-
forcement of its bargaining agreement. In any event, the
General Counsel contends that the Unions demonstrated
the relevancy of the requested information and, there-
fore, that Respondent violated Section 8(a)(5) and (1) of
the Act by not furnishing the information to the Unions.
Respondent first contends that the issue is now moot
because the parties agreed in their 1981-83 agreement to
the identity of those employers bound to the contract.
Thus, Respondent argues that the agreement "answers
the Unions' articulated need for the requested informa-
tion." Second, Respondent argues that the Unions failed
to establish the relevancy of the requested information
and, therefore, that Respondent had no obligation to fur-
nish the requested information.
C. Analysis and Conclusions
It is well settled that an employer has a statutory obli-
gation to provide a union, on request, with relevant in-
formation the union needs for the proper performance of
its duties as a collective-bargaining representative.
N.LR.B. v. Acme Industrial Co., 385 U.S. 432, 435-436
(1967); Detroit Edison Co. v. N.L.R.B., 440 U.S. 301
(1979). In determining whether an employer is obligated
to supply particular information, the question is only
whether there is a "probability that the desired informa-
tion [is] relevant, and that it would be of use to the union
in carrying out its statutory duties and responsibilities."
N.L.R.B. v. Acme Industrial Co., supra at 437. As the Su-
preme Court has stated the disclosure obligation is meas-
ured by a liberal "discovery-type standard not a trial-
type standard, of relevance. Ibid. Where the requested
information deals with information pertaining to employ-
ees in the unit which goes to the core of the employer-
employee relationship, said information is "presumptively
relevant." Emeryville Research Center, Shell Development
Company, a division of Shell Oil Co. v. N.L.R.B., 441
F.2d 880 (9th Cir. 1971). Where the information is pre-
10 As noted, at the commencement of the negotiations there were 52
employers listed by Respondent. It appears that during the negotiations
certain employers signed interim agreements with the Unions and, as a
result, were expelled from membership in Respondent. No other explana-
tion for the decrease in employer membership appears in the record.
202
LUMBER AND MILL EMPLOYERS ASSOCIATION
sumptively relevant, the employer has the burden of
proving the lack of relevance. Prudential Insurance Com-
pany of America v. N.L.R.B., 412 F.2d 77 (2d Cir. 1969).
"[B]ut where the request is for information with respect
to matters occurring outside the unit, the standard is
somewhat narrower . . and relevance is required to be
somewhat more precise .... The obligation is not un-
limited. Thus where the information is plainly irrelevant
to any dispute there is no duty to provide it." Ohio Power
Company, 216 NLRB 987, 991 (1975); Doubarn Sheet
Metal, Inc., 243 NLRB 821, 823 (1979). Thus, where the
requested information deals with matters outside the bar-
gaining unit, the union must establish the relevancy and
necessity of its request for information. San Diego News-
paper Guild, Local No. 95 of the Newspaper Guild, AFL-
CIO, CLC [Union-Tribune Publishing Co.] v. N.L.R.B.,
548 F.2d 863 (9th Cir. 1977).
The AGC case also involved multiemployer/multi-
union bargaining. In that case, the Carpenters requested
that the AGC supply complete membership rosters. The
Board found that one of the principal reasons for the re-
quest was the Carpenters fear that the AGC's actions
had fostered growth in the number of open-shop employ-
ers and the volume of nonunion construction, and that,
as a result thereof, some employer-members of the AGC
had attempted to escape their contractual obligations by
creating double-breasted or alter ego operations. Thus,
the Carpenters needed the information to facilitate in-
quiry into the question whether some of AGC's open-
shop members were, in fact, bound by the AGC-Carpen-
ters collective-bargaining agreement. The AGC had de-
termined, entirely by itself, that the open-shop members
were not bound by the collective-bargaining agreement
notwithstanding that they had some element of common
ownership and/or common officers with firms bound by
the contract. The Board found that the Carpenters was
entitled to have equal access to the same data so that
they could intelligently evaluate the facts and, thereby,
reach their own conclusions on whether or not to pursue
remedies for possible contract violations to seek provi-
sions in the contracts under negotiation which would
serve to preserve the integrity of their respective bar-
gaining units. The Board concluded by finding that the
information sought was relevant and necessary to the
Carpenters administration of their bargaining agreement,
to the intelligent assessment of the advisability of filing
grievances or taking other remedial action, and to the
formulation of related bargaining proposals in the then-
pending negotiations.
The Court of Appeals for the Ninth Circuit found that
the information requested by the Carpenters Union was
not presumptively relevant and, thus, the union had the
initial burden to show relevancy. The court found that
the evidence of an increase in open-shop members, AGC
sponsorship of seminars on conversion to open shops,
and common ownership of some union and open-shop
contractors established the relevancy of the requested in-
formation. The court then found that it was not neces-
sary for the Carpenters to show actual violations of the
contract:
It is sufficient that the information sought is rele-
vant to possible violations where the union has es-
tablished a reasonable basis to suspect such viola-
tions have occurred. Actual violations need not be
established in order to show relevancy. [633 F.2d at
771.1
The court further found that it was not essential that the
information fully resolve the question whether a contract
violation had occurred. It was sufficient under a liberal
discovery standard that the roster would aid in the Car-
penters investigation of contract violations. The court
found that the record established the relevancy of a
roster of open-shop and open-shop specialty members
only and it, therefore, modified the Board's order to in-
clude only those membership classifications. The Board
had ordered AGC to furnish the Carpenters with its full
membership list.
Applying the above legal principles to the instant case,
it appears that the identity of the members of Respond-
ent was a real concern of the Unions. Van Bourg ex-
pressed the concern that there had been a change in the
membership of Respondent. Former members of Re-
spondent had joined other bargaining groups. Misakian
indicated that Respondent's claim of representation was
based on its bylaws. Van Bourg requested the bylaws so
that the Unions could make their own determination as
to whether the bylaws were sufficient to bind a member
to the agreement being negotiated. Misakian put the
identity of the employer-members in issue when he stated
that "a strike against one was a strike against all." Van
Bourg requested information so that the Unions could
make their own determination of who constituted "all."
During negotiations the identity of the employer-mem-
bers was still very much a live issue as Respondent's
membership decreased from 66 in the 1978-81 agree-
ment, to 52 at the start of negotiations, and finally to 31
at the time the agreement was reached.
In his correspondence, Van Bourg asserted that the in-
formation was relevant to the Unions' determination of
problems such as double-breasting, avoidance of the con-
tract and application of the contract. Apparently this ar-
gument has two points: (I) members of Respondent not
listed in the agreement may be bound to the agreement
by virtue of the bylaws; and (2) members of Respondent
may be obligated to apply the agreement to locations
other than those listed in the agreement. As noted above,
since the filing of the instant charge, the Unions have
filed a grievance concerning the application of the agree-
ment to a second location of Higgins Lumber Company.
Under these circumstances, I find that, during the ne-
gotiations, the bylaws and membership list of Respond-
ent were relevant to the Unions' determination of the
identity of the employer-members of Respondent which
was itself necessary in order to determine the scope of
the bargaining unit. The exchange of a broad range of in-
formation ·would seem to further the statutory policy of
facilitating meaningful collective bargaining. Press Demo-
crat Publishing Co. v. N.LR.B., 629 F.2d 1320, 1325 (9th
Cir. 1980). See also San Diego Newspaper Guild, supra at
548 F.2d at 866-867; Proctor & Gamble Mfg. Co. v.
N.L.R.B., 603 F.2d 1310, 1315 (8th Cir. 1979). The alter-
203
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
native, having the Unions question each employer
whether it would be bound by the agreement, is simply
not effective nor conducive to a stable collective-bar-
gaining relationship. In addition, during the life of the
agreement, under the rationale of AGC, supra, the re-
quested information is relevant to the Unions' intelligent
assessment of the advisability of filing grievances or
taking other remedial action regarding the nonapplica-
tion of the agreement to certain members or certain loca-
tions of member-employers of Respondent.
The question remains as to whether the refusal to fur-
nish the bylaws and membership roster has become moot
by virtue of execution of the 1981-84 bargaining agree-
ment. While the agreement on its face appears to put to
rest the question of the identity of Respondent's employ-
er-members, I do not consider the case moot."1 Re-
spondent does not contend that the Unions waived their
right to the information. The Unions clearly indicated
that the agreement did not resolve their need for the in-
formation. Rather, Respondent contends that the infor-
mation is no longer relevant. I reject Respondent's argu-
ments for two reasons. First, Respondent's refusal to fur-
nish the information, upon demand, has not been reme-
died. Respondent should not profit by its delay in fur-
nishing the relevant information during negotiations.
Second, the Unions still seek the information for its prob-
able and potential use in determining the advisability of
grievances or other action over the nonapplication of the
agreement to certain firms or locations. Evidence of a
contract violation is not essential; it is sufficient under a
liberal discovery standard that the bylaws and roster
would aid in the Unions' investigation of possible con-
tract violations.
I find nothing in the record which privileges Respond-
ent's failure to provide the relevant information. There is
no evidence that the Unions' request was not made in
good faith. Disclosure of the relevant portions of the
bylaws or the membership roster would not impose an
onerous burden on Respondent. Finally, Respondent has
proposed no practicable alternative to disclosure. Ac-
cordingly, I find that Respondent's refusal to furnish rel-
evant information requested by the Unions was violative
of Section 8(a)(5) and (1) of the Act.
IV. THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom and that it take certain affirmative
action to effectuate the policies of the Act.
As mentioned above, in the AGC case, the Court
modified the Board's Order and ordered the AGC to fur-
nish a roster of open-shop and open-shop specialty mem-
bers rather than a full membership roster. Thus, a
narrow order will be recommended here. Accordingly,
Respondent will be ordered, upon request, to furnish the
Unions with the requested information heretofore found
"1 In labor cases, cessation of the challenged conduct does not assure
that the underlying controversy will not be reopened or that the chal-
lenged conduct will not reoccur. The Edward J. DeBartolo Corporation v.
N.L.R.B., 662 F.2d 264, 267, fn. 2 (4th Cir. 1981); see also N.L.R.B. v.
Raytheon Co., 398 U.S. 25 (1970); Pet, Incorporated v. N.L.R.B., 641 F.2d
545, fn. I (8th Cir. 1981).
relevant and necessary to contract negotiations and con-
tract administration, specifically (1) a copy of those por-
tions of Respondent's bylaws which purportedly grant
Respondent authority to bargain collectively for its
members; and (2) a list of the names and addresses of Re-
spondent's members, excluding sustaining members, per-
formed work of the type covered by the parties' 1981-84
agreement and not already included in "Appendum 'A"'
of the 1981-84 agreement.
CONCLUSIONS OF LAW
1. Respondent Lumber and Mill Employers Associ-
ation is an enployer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Unions, Millmen, Cabinetmakers, Industrial
Carpenters Union Local No. 550; Millmen and Industrial
Carpenters Local No. 262; and Millmen, Cabinetmakers
and Industrial Carpenters Union, Local No. 42, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, are labor organizations within the meaning of
Section 2(5) of the Act.
3. By refusing to furnish the above-named Unions with
information necessary and relevant to the negotiation and
administration of their collective-bargaining agreement
with Respondent, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 2
The Respondent, Lumber and Mill Employers Associ-
ation, San Mateo, California, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Millmen, Ca-
binetmakers, Industrial Carpenters Union Local No. 550;
Millmen and Industrial Carpenters Local No. 262; and
Millmen, Cabinetmakers and Industrial Carpenters
Union, Local No. 42, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, by refusing to
supply relevant information upon request.
(b) In any like or related manner violating Section
8(a)(5) and (1) of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Furnish, upon request, to said Unions a copy of the
relevant portions of its bylaws and the names and ad-
dresses of its employer-members, as more fully explained
in the remedy section of this Decision.
12 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
204
LUMBER AND MILL EMPLOYERS ASSOCIATION
(b) Post at its offices, and at the offices of all its em-
ployer-members, copies of the attached notice marked
"Appendix."' 3 Copies of said notice on forms provided
by the Regional Director for Region 20, after being duly
signed by Respondent's representative, shall be posted by
Respondent and by each of its employer-members imme-
Ls In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
diately upon receipt thereof, and be maintained by them
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employer-members'
employees are customarily posted. Reasonable steps shall
be taken by Respondent and its employer-members to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
205