Otay River Constructors

National Labor Relations Board - Administrative Judge Opinions

Jun 5, 2007

21-CA-037294 (N.L.R.B. Jun. 5, 2007)

JD(SF)17–07
Chula Vista, Calif.
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO, CALIFORNIA
OTAY RIVER CONSTRUCTORS
and
BUILDING MATERIAL, CONSTRUCTION,
INDUSTRIAL, PROFESSIONAL AND TECHNICAL
TEAMSTERS UNION, LOCAL NO. 36,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
Case 21–CA–37294
Robert MacKay, San Diego, Calif., for the General Counsel.
Richard D. Prochazka, San Diego, Calif., for the Charging
Party.
Mark T. Bennett of Marks, Golia & Finch, San Diego, Calif., for
Respondent
DECISION
Statement of the Case
JAMES M. KENNEDY, Administrative Law Judge: This matter was tried in San Diego,
California on March 26, 2007, based upon a complaint issued by the Regional Director for
Region 21 of the National Labor Relations Board on November 2, 2006. The complaint is
founded upon an unfair labor practice charge filed by Building Material, Construction, Industrial,
Professional and Technical Teamsters Union, Local No. 36, International Brotherhood of
Teamsters (the Union), on May 19, 2006. The complaint asserts that Otay River Constructors
(Respondent) has violated §8(a)(5) and (1) of the National Labor Relations Act by refusing to
provide certain information to the Union and thereby prevented it from carrying out its duties as
the exclusive collective bargaining agent of Respondent’s employees.
The parties were given full opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses and to file briefs. All parties have filed briefs which have
been carefully considered. Based upon the entire record of the case, 1 as well as my
observation of the witnesses and their demeanor, I make the following:

1 The General Counsel has filed a motion to correct the transcript in certain respects. The
motion is granted. In addition, the transcript inadequately describes the colloquy between
myself and counsel, frequently resorting to the insertion of a dash (‘- -‘) as a substitute for
dropped words, without explaining why the words were omitted. This does not seem to have
occurred with regard to witness testimony. I suspect the omitted words could have been
determined had proper effort been made by the transcriber.
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Findings of Fact
I. Jurisdiction
At the hearing the parties stipulated that Respondent at times material is a joint venture
comprised of Washington Group International, Inc., and Fluor Daniel, a division of Fluor
Enterprises, Inc., doing business as Otay River Constructors, and has been engaged in the
building and construction industry in Southern California. They further stipulated that
Respondent, having an office in Chula Vista, California, has been engaged in the business of
designing and constructing two heavy highway projects in San Diego County known as (i) the
Gap/Connector Project and (ii) the SR 125 Toll Road Project. During the 12 month period
ending December 31, 2005, in the course of those projects, it has received goods from outside
California valued in excess of $50,000. Accordingly, it admits it is an employer engaged in
commerce within the meaning of §2(2), (6) and (7) of the Act. It also admits the Union is a labor
organization within the meaning of §2(5) of the Act.
II. Issues
This is an information request case. As will be seen below, the Union has a collective
bargaining relationship with Respondent. One of the provisions deals with a common feature of
heavy and highway construction truckdrivers, the use of individuals who own their own vehicle
and operate it on the construction site. These persons are commonly referred to as ‘owner-
operators,’ a term which is descriptive but which is not helpful in determining their legal status.
In this case, the spark which caught the Union’s attention was Respondent’s use of water tanker
drivers whose job was to spray water on the jobsites for earth compaction and dust abatement
purposes. They rarely left the project since they were able to obtain tank refills from water
towers on or near the project. In any event, their labor is a real component of the construction
process and is not the delivery or haul-away of material. The statute draws a distinction
between work which is wholly on-site and work related to transportation to and from the site.
In any event, the Union filed a grievance 2 concerning the terms and conditions being
applied to the on-site owner-operators, asserting that the on-site owner-operators were statutory
employees whose working conditions are to be governed by the collective bargaining contract.
In order to process the grievance, it also demanded certain information from Respondent in
order to carry out its duty of employee representation. Respondent at first declined to provide
any information whatsoever. However, about a year after the first demand, some material was
supplied. The General Counsel and the Union assert that the material failed to satisfy the
request and was, in any event, untimely.
Respondent justifies its lack of response on the ground that the owner-operators are
independent contractors and are, first, outside the bargaining unit and second, that such a
demand is the enforcement of an illegal contract clause, pointing to §8(e) of the Act. It also
asserts that it is an attempt to force business owners, the owner-operators, to join the Union,
also barred under §8(e) case law interpretation.

2 Called a ‘complaint’ under the agreement, but not to be confused with the Regional
Director’s complaint.
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3
Clearly, the Board has held, in a variety of circumstances that owner-operators can be
either statutory employees or independent contractors, depending on the facts in each case.
Time Auto Transp., 338 NLRB 626 (2002) (employees); Teamster Local 814 (Santini Bros.), 223
NLRB 752 (1976), enfd. 546 F.2d 989 (D.C. Cir. 1976), cert. den. 434 U.S. 818 (1977)
(independent contractors). There are many other examples and the cases are entirely fact-
bound. The question presented by this complaint is whether the Union is entitled to information
concerning the legal status of these owner-operators so that it can make a decision concerning
what its next step, if any, will be. It is entirely conceivable that the facts it learns through this
information will lead it to conclude that the owner-operators are independent contractors; it is
equally likely that the information will lead it to conclude that they are statutory employees,
entitled to the protection of the collective bargaining contract. Aware of those varying paths, I
concluded that Respondent’s concerns were premature, and barred proof of that issue,
determining that it would be best for the information to first lead wherever it might go. There is
no question that the Union has the right to determine whether disputed individuals are in or out
of the bargaining unit. 3 Furthermore, the grievance process is the appropriate vehicle to inquire
about and develop the pertinent facts.
Respondent asserts that my preliminary analysis and rulings are error. It has made an
offer of proof on the issue and has preserved it for review. I decide here that it should have
promptly responded to the information request by either providing the information or advising
why it cannot. The bargaining unit placement issue is to be left for another day and in another
forum.
III. The Facts
In August 2002, Respondent and the Union entered into a ‘memorandum project
agreement’ covering the Gap Connector and SR 125 toll road highway projects. That
agreement adopted the terms of the master construction agreement (the ‘AGC agreement’)
negotiated between the Union and the San Diego Chapter of the Associated General
Contractors of America. It also adopted any successor AGC agreement, including the one in
effect at the time the Union demanded the information in issue here. 4

3 The Board recognizes that “a union's representation responsibilities…encompass, among
other things, administration of the current contract and continual monitoring of any threatened
incursions on the work being performed by bargaining unit members.” Detroit Edison Company,
314 NLRB 1273, 1275 (1994). Cf. Magnet Coal Inc., 307 NLRB 444, 444-45 (1992) (request for
information seeking the identities of any persons who performed services for either the
respondent or an entity alleged to be its alter ego was relevant to the union's alter ego inquiry),
enfd. 8 F.3d 71 (D.C. Cir. 1993).
4 Respondent, in its brief, for the first time asserts that the project agreement specifically
references a ‘master construction agreement,’ but observes that the AGC agreements are titled
‘master labor agreement.’ It argues that the contractual arrangement being relied upon here is
therefore defective and the complaint must be dismissed, since there has been no showing that
the AGC agreement is the master which the project agreement incorporates. Frankly, this
argument is frivolous and cannot be taken seriously. If Respondent had wanted to make that
argument, it should have done so during the investigation, the pleadings stage or during the
hearing so the matter could be examined. But the fact is, on this record, there is no other
master agreement. Moreover, Respondent has been applying it to both projects. No one is
confused about which agreement is in effect. At this point, Respondent is estopped from such a
defense.
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4
Clause 31 B of the 2004-2007 master agreement covers owner-operators. By its terms,
it applies only to “owner-operators performing jobsite work. . . .” Subparagraph 1 allows the
employer to obtain trucks from any source, but requires the drivers to be cleared for work by the
Union before starting work on their second day. It also sets forth some proof of ownership
requirements.
In subparagraph 2, the contractor, inter alia, commits that it will reserve to itself the right
to control the owner-operator through the manner, time, means and details by which the owner-
operator performs his job, as well as the ends to be accomplished and further commits that it
will be the sole judge of the capability of the owner-operator to perform the required work. This,
in my opinion, is the contractor’s commitment to making jobsite owner-operators employees as
defined by §2(3) of the Act, an adoption of the well-known ‘right of control’ test. Subparagraph 3
is consistent. It requires the contractor to carry these owner-operators on its payroll as
employees and to apply all the working conditions established by the remainder of the master
agreement to the owner-operator, except for any conditions which are contractually excluded.
Subparagraph 11 provides for a three man committee (selected in accordance with the
steward’s clause) to look into alleged violations of the owner-operators clause. It also provides,
for each violation, 1 days pay at the highest hourly rate covering wage and fringe benefit costs
to be paid to the San Diego chapter of the Leukemia Society and that the check must be
submitted through the Union.
In addition, the master agreement contains a relatively standard construction industry
union security clause requiring employees working under it for 7 days, on the 8th day to tender
the regular initiation fee and periodic dues to the Union as a condition of employment.
John Terry serves as the Union’s construction industry business agent. His superior is
Secretary-Treasurer Art Cantu. During 2005, Terry made visits to the two projects and realized
that there were water tankers spraying the sites, both for dust abatement and to assist in the
earth compaction process. He learned from some of them that they were owner-operators who
were not being paid wages and fringes under the contract. He obtained the names of some of
the drivers and reported the issue to Cantu. To Terry it seemed likely that Respondent was not
honoring clause 31 of the master agreement. He and Cantu realized, however, that they had
insufficient information to decide what to do.
On September 22, 2005, Cantu wrote a letter to Respondent’s job superintendent Jim
Mende 5 essentially notifying him that the Union was putting Respondent on notice that it may
be in violation of the owner-operator clause of the master agreement.
Later, Cantu decided to file a grievance and did so by letter dated January 12, 2006
addressed to ‘Jim Mindy.’ Cantu asserted that the Company was violating the owner-operator
clause and asked for a committee meeting under subparagraph 11.
Simultaneously, Cantu sent a separate letter requesting information about the manner in
which Respondent was utilizing owner-operator water truck drivers in order to ‘knowledgeably
process’ the complaint. The letter made six information demands: 1. Names, address and
telephone numbers of each owner-operator; 2. the broker through which the owner-operator
was provided; 3. the work the owner-operator was assigned; 4. the days the owner-operator

5 The correct spelling of Mende’s name is unclear. The September 22 letter spells it as
shown. Later letters spell it as ‘Mindy.’
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was so engaged; 5. whether the work required the owner-operator to leave the jobsite; and 6.
copies of the broker’s documentation governing the owner-operator’s engagement. Cantu
concluded by observing that the information was also necessary in order to determine the
penalties which might be due under the penalty clause.
Getting no response, Cantu repeated his request in a letter to ‘Mindy’ dated February 7,
2006, advising that the information sought could be presented in any way that was convenient
for Respondent. In addition, Cantu clarified the demand to clearly state that the Union only
sought information regarding whether the owner-operators were daily required to leave the
jobsite, and said the Union would be happy with the information in “either a positive or negative
basis.”
Respondent did not reply to the demands of January 12 or February 7, 2006.
On April 6, 2006, a meeting was held at the Union’s office during which no information
was provided. Respondent proffered some evidence relating to the manner in which the
negotiated trust fund contributions were to be paid, but I rejected the proffer on the grounds that
it had nothing to do with providing the underlying information. A second meeting was held on
April 26, 2006, but again no information was provided. Finally, on January 18, 2007, during
another meeting, Respondent provided some disorganized and token information regarding
some hours from Pacific Water Truck & Equipment, a Northern California broker who had sent
some owner-operators to the jobsite. See GC Exh. 9. This was provided 5 weeks before this
hearing and about 2 months after the Regional Director issued this complaint. The General
Counsel and the Union regard the material (incomplete, as it was) as too little, too late.
Respondent declined to offer any different version of the facts.
IV. Analysis
The general rule is that an employer is obligated to provide the employees' statutory
bargaining representative with information in its possession relevant to collective bargaining.
Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979); NLRB v. Acme Industrial Co., 385 U.S. 432
(1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); Curtiss-Wright Corp. v. NLRB, 347 F.2d
61 (3d Cir. 1965); Fafnir Bearing Co., 146 NLRB 1582 (1964), enfd. 362 F.2d 716 (2d Cir.
1968). Furthermore, The Board in Sheraton Hartford Hotel, 289 NLRB 463, 463-464 (1988),
said §8(a)(5) obligates an employer to provide a union with the requested information if there is
a probability that the information would be relevant to the union in fulfilling its statutory duties as
bargaining representative. When the requested information concerns wage rates, job
descriptions, and other information pertaining to employees within the bargaining unit, the
information is presumptively relevant. Postal Service, 332 NLRB 635 (2000). (same).
Moreover, information that is “potentially relevant and will be of use to the union in
fulfilling its responsibilities as the employees' exclusive bargaining representative” must be
produced. Acme Industrial Co., supra, at 435-436; Conrock Co., 263 NLRB 1293, 1294 (1982).
The requested information need not be dispositive of the issue for which it is sought but need
only have some bearing on it. Information pertaining to employees within the bargaining unit is
presumptively relevant. Sheraton Hartford, supra, and Postal Service, supra.
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Here, the underlying question is whether the individuals about whom the Union is
seeking the information are statutory employees within the meaning of §2(3) of the statute and
therefore in the bargaining unit, or whether they are independent contractors excluded from the
definition of employee. 6 This is, at bottom, nothing more than a bargaining unit issue: Are the
owner-operators in or out of the bargaining unit? That, of course, is the question the Union is
trying to answer in its request for information. Respondent’s defense is that the owner-
operators are independent contractors and therefore the Union is seeking information about
individuals that it does not and cannot represent. In my opinion, Respondent’s position is
premature, for it will not allow for contrary facts to be developed; indeed, it will not allow any
facts on the issue to be developed whatsoever. Its stance is designed to keep the Union
entirely in the dark. See Conrock, supra, at 1294.
Of course, Respondent’s view is entirely undermined by the fact that it has agreed in the
master agreement to do what it can to make owner-operators statutory employees. It has made
a serious contractual commitment to do so. See Paragraph 31 B (2) of the agreement, supra.
The Union is well aware of that commitment and knows it is obligated to represent those
individuals as bargaining unit employees. Its desire to both represent them and to apply the
union security clause to them is manifest in that circumstance. Indeed, it is obligated under the
Act to do its job of representing all employees well, not just some.
Now the facts found through the grievance process may ultimately turn out differently
than the Union would contractually expect. It may well be that the owner-operators here are
indeed independent contractors and outside the bargaining unit. But facially, the Union has a
duty to find out. Respondent also argues that if the owner-operators are independent
contractors, then the penalty to be applied, contributing to the Leukemia Society, is a
nonmandatory subject matter. Yet I do not regard that as the only remedy available. If these
owner-operators are employees who have been wrongly paid as independent contractors, there
are still wage and hour issues to be looked at, not to mention contributions to the fringe benefit
funds and unpaid dues and fees arising from an unlawful unilateral change of working
conditions. Those are mandatory subject matters, squarely of interest to the Union as it
represents statutory employees.
Contrariwise, if Respondent is right, that the owner-operators are, in reality, independent
contractors, the Union is entitled to learn that fact. The factual information supporting that
conclusion must be transparent to the Union as it decides how to enforce (or not enforce) the
collective bargaining agreement. Respondent’s denial of the pertinent information prevents the
Union from even knowing how to proceed. The Act favors transparency. Indeed, the
employee/owner-operator issues are intimately intertwined and that very fact requires that the
matter be treated as a mandatory subject for the purpose of production. See, e.g., Sea Bay
Manor Home for Adults, 253 NLRB 739, 740 (1980), enfd. 685 F.2d 425 (2d Cir. 1982)
(agreement to use interest arbitration was mandatory subject of bargaining because agreement
was so intertwined with other mandatory subjects).

6 Section 2(3) reads in pertinent part: “The term ‘employee’ shall include any employee, and
shall not be limited to the employees of a particular employer, unless the Act [this subchapter]
explicitly states otherwise, and shall include any individual whose work has ceased as a
consequence of, or in connection with, any current labor dispute or because of any unfair labor
practice, and who has not obtained any other regular and substantially equivalent employment,
but shall not include any individual employed as an agricultural laborer, or in the domestic
service of any family or person at his home, or any individual employed by his parent or spouse,
or any individual having the status of an independent contractor, . . . .” (Italics supplied.)
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Respondent has also asserted that the owner-operator clause raises some issues under
§8(e) of the Act. Potentially, I agree. However, the clause is capable of being interpreted in an
lawful manner, and it would be speculation at this stage for me to make the assumptions
Respondent is making. When the Union seeks to enforce the clause, after learning that the
owner-operators are independent contractors, the time will have come to properly address that
question. Until then, Respondent has agreed to take the factual steps necessary to make
certain the owner-operators are statutory employees. It is stuck with that commitment for now.
Since it has made no claim that it cannot comply with the Union’s demands, Respondent
will be ordered to provide the information requested.
Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of §2(2), (6)
and (7) of the Act.
2. Building Material, Construction, Industrial, Professional and Technical Teamsters
Union, Local No. 36, International Brotherhood of Teamsters is a labor organization within the
meaning of §2(5) of the Act.
3. At all times material herein the Union has been the exclusive representative of the
employees working under the jurisdiction of the Union as defined in Section 5 of the master
collective bargaining agreement between the Associated General Contractors of America, San
Diego Chapter, Inc., and the Union, effective by its terms from June 12, 2004 to June 30, 2007.
4. By refusing to provide certain information, set forth in this decision as requested by
the Union, Respondent has violated Section 8(a)(5) and (1) of the Act.
Remedy
Having found that Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended 7
ORDER
Respondent, Otay River Constructors, Chula Vista, California, its officers, agents,
successors, and assigns, shall
1. Cease and desist from:

7 If no exceptions are filed as provided by §102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in §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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a. Refusing to provide to Building Material, Construction, Industrial, Professional and
Technical Teamsters Union, Local No. 36, International Brotherhood of Teamsters
certain information which is relevant to performing its role as the bargaining unit
employees’ exclusive collective bargaining agent. That information is: 1. The
names, addresses and telephone numbers of each owner-operator; 2. the broker
through which each owner-operator was provided; 3. the work to which the owner-
operator was assigned; 4. the days the owner-operator was so engaged; 5. whether
the work required the owner-operator to leave the jobsite; and 6. copies of the
broker’s documentation governing the owner-operator’s engagement.
b. In any like or related manner restraining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
a. On request, immediately furnish the information set forth above.
b. Within 14 days after service by the Region, post at its office and jobsite offices in and
near Chula Vista, California copies of the attached notice marked “Appendix.” 8
Copies of the notice, on forms provided by the Regional Director for Region 21, after
being signed by Respondent's authorized representative, shall be 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 covered by any other material. In the event that, during
the pendency of these proceedings, Respondent has gone out of business or closed
the facility involved in these proceedings, 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 January 12, 2006.
c. Within 21 days after service by the Region, file with the Regional Director for
Region 21 a sworn certification of a responsible official on a form provided by the
Region attesting to the steps that Respondent has taken to comply.
____________________________________
James M. Kennedy
Administrative Law Judge
Dated, Washington, D.C., June 5, 2007

8 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in
the notice reading “POSTED BY ORDER OF THE NATIONAL 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 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 provide to Building Material, Construction, Industrial,
Professional and Technical Teamsters Union, Local No. 36, International
Brotherhood of Teamsters certain information which is relevant to performing its
role as exclusive collective bargaining agent of our employees covered by the Local
36-AGC master agreement.
WE WILL NOT in any like or related manner restrain or coerce employees in the
exercise of the above listed rights.
WE WILL, upon the Union’s request, promptly supply the following information which is
relevant to the Union’s duty of representing our employees working under the Local
36-AGC agreement:
1. The names, addresses and telephone numbers of each owner-operator;
2. The name of the broker through which each owner-operator was provided;
3. The work to which the owner-operator was assigned;
4. The days the owner-operator was so engaged;
5. Whether the work required the owner-operator to leave the jobsite; and
6. Copies of the broker’s documentation governing the owner-operator’s
engagement.
OTAY RIVER CONSTRUCTORS
(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.
888 South Figueroa Street, 9th Floor, Los Angeles CA 90017-5449
(213) 894-5220, Hours: 8:30 a.m. to 5 p.m.
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, (213) 894-5229.