M. Scher & Son, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1987

286 N.L.R.B. 688 (N.L.R.B. 1987)

688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
M. Scher & Son, Inc. and International Brotherhood
of Electrical Workers, Local 1249, AFL-CIO.
Case 3-CA-13444
30 September 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFT
On 26 May 1987 Administrative Law Judge Joel
P. Biblowitz issued the attached decision. The Re-
spondent filed exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and has decided to
affirm the judge's rulings, findings,' and conclu-
sions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, M. Scher &
Son, Inc ., Albany, New York , its officers , agents,
successors , and assigns , shall take the action set
forth in the Order.
' In agreeing with the judge 's conclusion that the Union met its burden
of showing that it had a reasonable objective basis for believing Mohawk
Valley Utility Construction Co. might be an alter ego of the Respondent,
we note additional evidence in the record supporting his conclusion.
Thus, Union Business Manager Andrew Mihok identified Scher equip-
ment and John Tennis (who identified himself as a Mohawk employee) at
the Albany, New York jobsite in early 1982 Mihok testified that the
Scher equipment on the site , such as the vernier saw Tennis was using at
the time, was intended for below-ground work even though the subcon-
tracting Scher was allegedly designated to perform for Mohawk was Inn-
ited to above-ground work Moreover , when Mihok asked Tennis by
whom he was employed, Tennis contradicted himself, responding first
that he was employed by Scher and later , when questioned about union
membership , stating that he was an employee of Mohawk. Mihok also
testified that Tennis told him that two or three other employees doing
below-ground work at the site were working under Tennis' direction.
Robert A. Ellison, Esq., for the General Counsel.
Edward L. Bookstein, Esq. (Kohn, Bookstein & Karp), for
the Respondent.
Charles E. Blitman, Esq. (Blitman & King), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOwrrz, Administrative Law Judge. This
case was heard by me on 16 March 1987 in Albany, New
York. The complaint and notice of hearing, that issued
on 4 November 1986,' and was based on a charge filed
on 22 September by International Brotherhood of Elec-
' Unless indicated otherwise , all dates referred to are for the year 1986.
trical Workers , Local 1249, AFL-CIO (the Union), al-
leges that M. Scher & Son, Inc . (Respondent), violated
Section 8(a)(1) and (5) of the Act by failing and refusing
to supply the Union with necessary and relevant infor-
mation it requested of Respondent about 27 August.
On the entire record , I make the following
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION STATUS
There being no dispute, I find that Respondent is an
employer within the meaning of Section 2(6) and (7) of
the Act and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. FACTS AND ANALYSIS
The record is comprised of the testimony of Andrew
Mihok, the Union's business manager, as well as exhibits
introduced by the General Counsel. The Union repre-
sents outside electrical employees in a geographic area
north and west of Westchester County, New York.
On 11 December 1973 Martin Scher, as president of
Respondent, executed a Letter of Assent-A with the
Union. This letter stated that he authorized New York
State Line Construction Contractors, Inc., as its collec-
tive-bargaining representative , for all matters contained
in or pertaining to the current approved Outside Electri-
cal Work Agreement between Construction Contractors,
Inc. and the Union. The effective date of the authoriza-
tion is given and it states further: "It shall remain in
effect until terminated by the undersigned employer
giving notice to the New York State Line Construction
Contractors, Inc. and to the Local Union at least one
hundred fifty (150) days prior to the then current anni-
versary date of the aforementioned approved labor
agreement."
In April 1983 Scher, as president of Respondent, and
the Union executed another Letter of Assent-A by which
Respondent authorized Northeastern Line Constructors
Chapter, NECA (the Association), as its collective-bar-
gaining representative for all matters contained in or per-
taining to the current approved Outside Electrical Work
Agreement between the Association and the Union. The
letter is effective 3 April 1983 and, again , remains effec-
tive unless terminated by Respondent at least 150 days
prior to the anniversary date of the agreement by notice
to the Association and the Union. Mihok testified that, to
his knowledge , Respondent never revoked or terminated
these letters of assent. Respondent introduced no evi-
dence that it ever did so.
At the time of the hearing, the Union and the Associa-
tion were parties to three separate collective -bargaining
agreements : The Commercial Agreement which covers
private employers performing transmission, substation, or
cable work; the Outside Utility Agreement,2 with utility
2 Mihok testified that the phrase "Outside Electrical Work Agree-
ment" as appears in 1973 and 1983 Letters of Assent, encompasses all
three agreements-Commercial, Utility, and Traffic Signals He also testi-
fied that until 1982, all three constituted a single agreement At that time,
a separate 1-year collective-bargaining agreement was established for traf-
Continued
286 NLRB No. 61
M SCHER & SON
companies performing similar work, and the Lighting,
Traffic Signal System, and Maintenance Agreement
which covers work performed for the State or private
owners on traffic signals . The prior two agreements were
effective from 1986 through 1988; the latter agreement
was effective from 1 May 1985 Through 30 April 1987
During the periods covered by these agreements, Re-
spondent performed work encompassed by these agree-
ments and paid the wage rates provided by these agree-
ments transmitted to the Union the fringe benefits re-
quired by the agreements, forwarded to the Union its
employees weekly union assessmen ts, adhered to the
Union's exclusive hiring hall as provided by the agree-
ments, and complied with the agreements' terms regard-
ing stewards and foremen.
Several of the provisions in the Commercial, Utility,
and Traffic Signal Agreements apply to alleged alter ego
situations: section 2.04 provides: "`The Employer recog-
nizes the Union as the exclusive representative of all of
its employees performing the work with [sic] the juris-
diction of the Union." Section 3.02 provides that the sub-
letting, transfer, or assignment by the Employer to any
person or firm not having a collective-bargaining rela-
tionship with an IBEW union would be deemed a mate-
rial breach of the agreement. Section 4.01 provides:
In order to protect and preserve, for the employees
covered by this Agreement, all work heretofore
performed by them, and in order to prevent any
device or subterfuge to avoid the protection and
preservation of such work, it is hereby agreed as
follows: if and when the Employer shall perform
any on-site construction work of the type covered
by this Agreement, under its own name or under
the name of another, as a Corporation, Company,
Partnership or any other business entity, including a
joint venture, wherein the Employer through its of-
ficers, directors, partners, or stockholders, exercises
either directly or indirectly, management, control or
majority ownership, the terms and conditions of this
Agreement shall be applicable to all such work.
The agreements also provide for an exclusive hiring hall
and that equipment owned or hired by the employer are
to be operated and driven by employees under the terms
of the agreements.
Commencing about early 1982, Mihok observed, or
heard from others of the operation of, a new nonsigna-
tory employer-Mohawk Valley Utility Corporation
(Mohawk). At that time, Mihok visited a jobsite in north-
ern Albany where a feeder line had accidently been cut.
A traffic signal was being installed for a shopping mall,
work covered under the Traffic Signal Agreement.3
fic signal work with reduced rates to assist the covered employers in ob-
taining work
3 As noted , supra, in fn 2, beginning in 1982, the parties had a separate
Traffic Signal Agreement Therefore , in 1 his situation , it is not clear
whether this work would have been covered by the overall agreement or
the Traffic Signal Agreement However, it appears to be covered work if
it were performed by Respondent
689
Mihok observed Respondent's trucks and equipment at
the jobsite and saw an individual, John Tennis, operating
one of these pieces of equipment. He asked Tennis if he
was a member of the Union and Tennis said that he was
not. Mihok then asked him how he could work for Re-
spondent without being a member of the Union; Tennis
said that he was employed by Mohawk, not Respondent.
The Dodge Reports are weekly reports relating to the
construction industry that lists work that is being bid, the
type and location of the work, the successful bidder,
starting dates, and other relevant information. From
these reports, Mihok learned that Mohawk was bidding
for, and obtaining, certain contracts and subcontracting
the above-ground work of those contracts to Respond-
ent, while performing the below-ground work. In about
1983 Mihok learned from the telephone directory that
the address of Respondent and Mohawk were the same.
He also heard "just rumors" that Mohawk was owned
by the wives of Paul and Martin Scher who, Mihok as-
sumes, are the owners of Respondent. Mihok testified
that from about 1983 until about 1986 Mohawk per-
formed the below-ground work on a number of jobs,
while subcontracting the above-ground work to Re-
spondent. Since 1986, Mohawk has been performing
almost all the work and subcontracting very little to Re-
spondent.
Since 1983, Mihok has learned from the Dodge Re-
ports, and other sources, of a number of situations where
Mohawk subcontracted above-ground work to Respond-
ent; more specifically in Oneida, Utica, Rockland County
and Fayettville, New York. He learned of the Oneida
job about May 1982, at which time some union members
informed him that Respondent's equipment was perform-
ing traffic signal work, but the employees operating the
equipment were not union members. The Utica job also
involved traffic signal work in about 1984. Some union
members informed Mihok of the job and he learned from
the Dodge Reports that Mohawk had obtained the job.
Mihok learned from the assessment remittance forms sent
by Respondent that one employee of Respondent, who
was a member of the Union, Russell Niecel, was em-
ployed on the job. Mihok likewise learned in 1984 that
Niecel was performing the above-ground work on the
Rockland County job, also a Mohawk job. In February
1985, Mihok was informed that Mohawk was performing
traffic signal work at Fayetteville; he sent two of his
staff members to the job and they reported that although
the equipment being used on the job had no identifiable
markings , Roy Oakes, an employee of Respondent and a
member of the Union' s inside sister local, was employed
there. Mihok testified that on one or two occasions
during this period, traffic cones (used to barricade traffic
or manholes) with Respondent 's name were being used
on Mohawk's jobs.
The cumulative effect of the above caused the Union
to suspect that Mohawk was an alter ego of Respond-
ent.4 Because of this, on 22 November 1985, the Union
sent the following letter to Respondent:
4 Mihok testified that if Mohawk was an alter ego of Respondent, bar-
gaining unit work was being performed by nonbargaimng unit employees
and Respondent would owe moneys to the Union for this work
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It has come to this Union's attention that M. Scher
& Son, Inc. (SCHER or its principals) have an
ownership interest in or a relationship with
Mohawk Valley Utility Construction Co.
("MOHAWK") and that company may be perform-
ing work of the type within the bargaining unit
covered by the collective bargaining agreement be-
tween this union and "SCHER." In order for this
local to police the existing collective bargaining
agreement, it is necessary for us to have the follow-
ing information from you:
The letter then specified 22 items of requested informa-
tion , including , inter alia, the officers, owners, employ-
ees, jobs, and equipment of Respondent and Mohawk,
and any transfer of funds between the two. The letter re-
quested an answer within a week. By letter dated 27 No-
vember 1985, Respondent responded to Mihok's request:
We have received your letter dated November 22,
1985 concerning the collective bargaining agree-
ment . After reviewing the information requested we
find it impossible to respond to the large amount of
information requested within the one week time
frame suggested by your letter. We are in the midst
of the holidays and other commitments preclude us
from responding within the very short time you
have allowed for such a vast amount of information.
We will, however, assemble the information avail-
able and respond to your request as soon as possi-
ble.
Your consideration for awaiting our detailed re-
sponse is appreciated.
About January, Mihok met Martin Scher and asked him
when he would send the requested information to the
Union; Scher answered that he would forward the infor-
mation to the Union as soon as possible. On 4 August the
Union filed an unfair labor practice charge against Re-
spondent (later withdrawn) alleging an 8(a)(5) violation
for refusing to furnish information requested by the
Union. By letter dated 27 August, counsel for the Union
wrote to Respondent, enclosing a copy of the Union's 22
November 1985 letter, stating: "the Union respectfully
requests that you provide the information requested in
Business Manager Mihok's enclosed letter as soon as
practicable." Respondent never supplied any of the infor-
mation requested.
In 1973 and 1983 Respondent, by Martin Scher, its
president, executed Letters of Assent-A authorizing
NECA to act as its collective-bargaining representative
"for all matters contained in or pertaining to the current
approved Outside Electrical Work Agreement" between
the Union and NECA. The letter provided further that it
shall remain in effect until terminated by Respondent by
notice to NECA and the Union at least 150 days prior to
the anniversary date of the agreement. Mihok testified
that, to his knowledge, no such notice was provided by
Respondent; as Respondent chose to produce no evi-
dence on this issue , or any other issue , I find that Re-
spondent never terminated these letters in a timely fash-
ion. Just as important in establishing Respondent's obli-
gations and intent is that Respondent continues to adhere
to the provisions of these agreements by paying the
proper wages and fringes and forwarding the proper re-
ports to the Union, as provided in these agreements.
Leapley Co., 278 NLRB 981 (1986) and Vincent Electric
Co., 281 NLRB 903 (1986), are precisely on point; in fact
they involve the same International union 's Letter of
Assent-A containing, in all material respects, exactly the
language involved herein. In Leapley, the administrative
law judge, as affirmed by the Board, stated:
Unquestionably, these forms could have been writ-
ten more clearly, but, it is quite obvious that it was
intended that the authorization should continue in
effect until an affirmative action was taken by the
employer, that is, until the employer notified the
Association and the Union, in writing, 150 days
before "the then current anniversary" of the agree-
ment in effect when the authorization was signed
that the employer desired to cancel the authoriza-
tion. There is no indication that it was intended that
the authorization would automatically expire on the
termination of the labor agreement in effect when
the authorization was signed.
Likewise, in Vincent Electric, the Board stated:
IBEW local unions have been utilizing letters of
assent identical in all material respects to the letter
of assent signed by this Employer for over 20 years,
and the Board consistently has held that an employ-
er who signs a Letter of Assent-A has agreed to
become part of a multiemployer bargaining group.
The Board cited with approval a decision involving a
Letter of Assent-A that noted "that the assents looked
toward future contracts as well as current ones." The
Board also cited, with approval, Central New Mexico
Chapter, 152 NLRB 1604 (1965), in which they discussed
the language contained in the Letter of Assent-A: "the
clear meaning of which is to continue the authority re-
posing in the [NECA] Chapter to represent a signatory
unless such authority is expressly withdrawn." As Re-
spondent never withdrew the authority granted in the
1973 and 1983 Letters of Assent, Respondent is bound to
the terms of the existing Commercial, Utility, and Traffic
Signal Agreements.
Under well-settled Board law, an employer must pro-
vide a union with requested information "if there is a
probability that such data is relevant and will be of use
to the union in fulfilling its statutory duties and responsi-
bilities as the employees' exclusive bargaining representa-
tive." Associated General Contractors of California, 242
NLRB 891, 893 (1979). When the requested information
regards the terms and conditions of employment of em-
ployees actually represented by the requesting union, it is
presumptively relevant and necessary, and must be pro-
duced. However, when the requested information con-
cerns operations or employees not represented by the
union , there is no such presumption. Ohio Power Co., 216
NLRB 987 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976);
Bohemia, Inc., 272 NLRB 1128 (1984). As the Board
M SCHER & SON 691
stated in Ray C. Lapp Air Conditioning, 270 NLRB 641
(1984):
A union must demonstrate reasonable or probable
relevance whenever the requested information os-
tensibly relates to employees outside the represented
bargaining unit even though the information may
show ultimately that the employees are part of the
bargaining unit because of the existence of a single
employer or an alter ego relationship.
In Bohemia , supra, the employer had a unionized and a
nonunion plant 30 miles apart. He temporarily closed the
unionized plant after the union refused his request to
reduce a contractually required wage increase; wages
were decreased at the nonunion plant, and it remained
open. Some of the union employees informed the union
of their "suspicion" that work had been transferred from
their plant to the nonunion plant. On the basis of this
suspicion, the union requested information from the em-
ployer concerning the operation at both plants. The
Board found no violation: "the Union's request for infor-
mation was based solely on the suspicion of some . .
employees that work had been transferred." They found
"the absence of any objective basis for believing unit
work was being diverted."
The instant matter is distinguishable; while the Union's
evidence is not enough to establish that Mohawk is an
alter ego of Respondent (as it need not here establish),
the General Counsel has established that the Union had
an objective factual basis for believing that Mohawk was
an alter ego or single employer of Respondent. Mohawk
was employing Respondent's employees, trucks, equip-
ment , and traffic cones on its jobs; they were often on
the same jobs and maintained the same office address,
more than the mere suspicion as in Bohemia, supra. In a
similiar case , Pence Construction Corp., 281 NLRB 322
(1986), the union's business agent collected a lot of infor-
mation regarding the connection between two employ-
ers, one of whom had a bargaining relationship with his
union . Included in this information was that the union-
ized company was the 100-percent owner of the non-
union company, that they had the same address, and that
there was an occasional interchange of employees and
supplies . The Union's request for information regarding
this relationship was denied by the employer. The ad-
ministrative law judge (as affirmed by the Board) stated
that in situations such as that, where the information was
not presumptively relevant, the union had the burden to
establish the relevancy of the requested information "as
an aid to investigation of a contract violation." In finding
a violation, the judge quoted Walter N. Yoder & Sons v.
NLRB, 754 F.2d 531 at 536 (4th Cir. 1985), enfg. 270
NLRB 652 (1984): "To establish that the Information was
relevant, the union must show that it had a reasonable
belief that enough facts existed to give rise to a reasona-
ble belief that the two companies were in legal contem-
plation a single employer." I find that the Union had sat-
isfied this burden at the time it made its request for the
information. I therefore find that Respondent's refusal to
comply with the Union's request for information, con-
tained in its letters of 22 November 1985 and 27 August
1986, violates Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent M. Scher & Son, Inc. is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By failing and refusing to give the Union, in writ-
ing, the information requested in its letters of 22 Novem-
ber 1985 and 27 August 1986, Respondent has engaged
in, and is engaging 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
THE REMEDY
Having found that Respondent has violated Section
8(a)(5) and (1) of the Act, it is recommended that it
cease and desist therefrom and take certain affirmative
action to effectuate the purposes of the Act.
In the complaint and in its brief, the General Counsel
requested the inclusion in the remedy of a visitatorial
clause, in effect, allowing the Board to engage in discov-
ery under the Federal Rules of Civil Procedure in order
to monitor compliance. However, no special circum-
stances are asserted or argued to justify such a clause in
the instant case The Board has previously indicated such
clauses will not be granted in a pro forma manner. See
O. L. Willis, Inc., 278 NLRB 203 (1986); United Cloth
Co., 278 NLRB 583 (1986). In the absence of any special
circumstances shown here, no visitatorial clause will be
provided.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed5
ORDER
The Respondent, M. Scher & Son, Inc., Albany, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with International
Brotherhood of Electrical Workers, Local 1249, AFL-
CIO, by refusing to furnish the Union the information re-
quested in its letters of 22 November 1985 and 27 August
1986.
(b) In any like or related manner interfering with, re-
straining , 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.
6 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) On request, bargain collectively with the Union by
furnishing to it in writing the information requested in its
letters of 22 November 1985 and 27 August 1986.
(b) Post at its office and other facilities in Albany,
New York, copies of the attached notice marked "Ap-
pendix."6 Copies of the notice, on forms provided by the
Regional Director for Region 3, after being signed by
Respondent's authorized representative, shall by posted
by Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
6 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with International
Brotherhood of Electrical Workers, Local 1249, AFL-
CIO (the Union) by refusing to furnish the information
sought by the Union, as stated below.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the National
Labor Relations Act.
WE WILL furnish to the Union the information sought
by the Union in its letters of 22 November 1985 and 27
August 1986, including information concerning the own-
ership, operation, equipment, employees, and business re-
lationship between M. Scher & Son, Inc. and Mohawk
Valley Construction Corporation.
M. SCHER & SON, INC.