16-CA-026292 (N.L.R.B. Aug. 17, 2010)

PDK INVESTMENTS, LLC

National Labor Relations Board - Unpublished Board DecisionsAug 17, 2010

16-CA-026292 (N.L.R.B. Aug. 17, 2010)

PDK INVESTMENTS 354 NLRB No. 1 1 PDK Investments, LLC and International Brother- hood of Electrical Workers, Local Union 20. Case 16–CA–26292 April 24, 2009 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER On December 29, 2008, Administrative Law Judge Michael A. Marcionese issued the attached bench deci- sion. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief. The National Labor Relations Board1 has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings,2 and conclusions and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, PDK Investments, LLC, Balch Springs, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. Member Schaumber does not necessarily agree with Board prece- dent holding that a requester may simply state a reason for its informa- tion request without giving any factual basis for the request. See, e.g., Dodger Theatrical Holdings, 347 NLRB 953, 953 fn. 3 (2006), citing Hertz Corp. v. NLRB, 105 F.3d 868, 874 (3d Cir. 1997). Here, the judge properly found that the Union’s June 9, 2008 letter to the Re- spondent disclosed both a reason for its information request and a summary or statement of the evidence on which it was relying. Under these circumstances, Member Schaumber would find the violation. See Lithographers Local One-L (Metropolitan Lithographers Assn.), 352 NLRB 906, 906 fn. 2 (2008). 3 We have deleted par. 2(b) of the judge’s recommended Order be- cause a general bargaining order is not warranted to remedy this infor- mation request violation. See H & R Industrial Services, 351 NLRB 1222, 1222 fn. 3 (2007). 1. Delete paragraph 2(b) and reletter the subsequent paragraphs accordingly. 2. Substitute the attached notice for that of the admin- istrative law judge. 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 vio- lated 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 bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain collectively with Inter- national Brotherhood of Electrical Workers, Local Union 20 by failing and refusing to provide the Union with the information requested in its letters dated April 4 and June 9, 2008. 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 promptly furnish the Union with the informa- tion that it requested in its letters dated April 4 and June 9, 2008. PDK INVESTMENTS, LLC Linda M. Reeder, Esq. and Kelly Pagan, Esq., for the General Counsel. Bruce E. Buchanan, Esq., for the Respondent. Duane R. Nordick, Esq., for the Charging Party. BENCH DECISION STATEMENT OF THE CASE MICHAEL A. MARCIONESE, Administrative Law Judge. I heard this case in Ft. Worth, Texas, on December 3, 2008.1 International Brotherhood of Electrical Workers, Local Union 20 (the Union) filed the charge in this case on June 30, and an amended complaint and notice of hearing issued on November 24. The amended complaint alleged that PDK Investments, LLC (the Respondent) violated Section 8(a)(5) and (1) of the Act by failing and refusing to furnish the Union, on request, with relevant information that was necessary for the Union to 1 All dates are in 2008 unless otherwise indicated. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 perform its duties as exclusive collective-bargaining representa- tive of the Respondent’s employees. On November 24, the Respondent filed its answer to the amended complaint, denying the unfair labor practice allegations and asserting, as an af- firmative defense, that its collective-bargaining relationship with the Union was governed by Section 8(f) of the Act and that the Respondent had given timely notice of its intent not to be bound to any subsequent collective-bargaining agreement with the Union.2 After hearing the testimony of the witnesses, reviewing the documentary evidence, and considering the arguments made by counsel for the parties at the hearing, I rendered a bench deci- sion in accordance with Section 102.35(a)(10) of the Board’s Rules and Regulations. There is no dispute that the Union, on April 4, 2008, sent the Respondent a letter with an attached questionnaire seeking answers to 79 questions regarding the relationship between the Respondent and another entity. On June 9, the Union, by letter, renewed this request and asked for additional information, including “whether tools have been retagged.” I found that the General Counsel and the Union met their burden of showing that the Union had a reasonable and objective basis for believing that an alter ego, single employer, or other relationship existed between the Respondent and sev- eral other entities that might have an effect on the bargaining unit of the Respondent’s employees that the Union represented. There being no dispute that the Respondent has failed and re- fused to furnish any of the information requested by the Union, I concluded that the Respondent had violated the Act as al- leged. See Shoppers Food Warehouse Corp., 315 NLRB 257 (1994). See also Pulaski Construction Co., 345 NLRB 931 (2005), and cases cited in my bench decision. I hereby certify the accuracy of the portion of the transcript, pages 142–162, containing my bench decision. A copy of that portion of the transcript is attached to this decision as “Appen- dix A.” CONCLUSION OF LAW By failing and refusing, since June 24, 2008, to furnish the Union with the information requested in the Union’s April 4 and June 9, 2008 letters, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sec- tion 8(a)(1) and (5) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. Specifically, the Respondent will be ordered to provide the Union with the requested information, and to post an appropriate notice. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended3 2 The General Counsel agreed that the parties have an 8(f), rather than 9(a) relationship. 3 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 ORDER The Respondent, PDK Investments, LLC, Balch Springs, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with International Broth- erhood of Electrical Workers, Local Union 20, by failing and refusing to provide the Union with relevant and necessary in- formation requested by the Union in its April 4 and June 9, 2008 letters. (b) In any like or related manner interfering with, 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 effec- tuate the policies of the Act. (a) Furnish the Union with the information requested in its April 4, 2008 letter and advise the Union whether the Respon- dent’s tools had been retagged, as requested in the Union’s June 9, 2008 letter. (b) On request, bargain collectively and in good faith with the Union with regard to the wages, hours, and other terms and conditions of employment of employees in the appropriate unit specified in the collective-bargaining agreement between the Respondent and the Union which is in effect through November 30, 2010. (c) Within 14 days after service by the Region, post at its fa- cility in Balch Springs, Texas, copies of the attached notice marked “Appendix B.”4 Copies of the notice, on forms pro- vided by the Regional Director for Region 16, 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 notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, 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 June 24, 2008. (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. APPENDIX A 142 JUDGE MARCIONESE: Okay. Now that I’ve had a chance to 21 hear all of the evidence in this case and consider the argu- Board and all objections to them shall be deemed waived for all pur- poses. 4 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” PDK INVESTMENTS 3 ments 22 that the parties have made in closing and reviewed the evi- dence, 23 including the documentary evidence, I’m prepared to issue my 24 decision as I had indicated previously pursuant to Section 25 102.35(a)(10) of the Board’s Rules and Regulations. 143 1 Now, the Board requires, even though that it is a bench 2 decision, that I still include much of the standard things that 3 you would find in a written decision, so I will go through a 4 statement of the case, jurisdiction. I have to make those 5 factual findings. 6 And we’ll start off with the way this case was initiated, 7 and that was by the filing of a charge by the International 8 Brotherhood of Electrical Workers, Local Number 20, the union 9 herein, on June 30 of 2008. Based upon that charge, the General 10 Counsel has issued first a complaint and notice of hearing on 11 September 30, 2008, and then an amended complaint on November 12 24, 2008. 13 The amended complaint alleged that the Respondent, PDK 14 Investments, LLC, had violated Section 8(a)(5) and (1) of the 15 Act by failing and refusing to furnish the union with 16 information requested by the union. The complaint further 17 alleged that the requested information is necessary for and 18 relevant to the union’s performance of its statutory duties as 19 exclusive collective-bargaining representative of the 20 Respondent’s employees. 21 The Respondent filed its answer to the amended com- plaint 22 on November 24, 2008, as well, essentially denying the unfair 23 labor practice allegations and raising several affirmative 24 defenses, including that the parties had an 8(f) bargaining 25 relationship and that Respondent had already served timely 144 1 notice under the contract of its intent not to be bound by any 2 subsequent agreements. 3 And I don’t think that’s really an issue in this case. 4 There’s no dispute the parties seem to agree that it is an 8(f) 5 relationship, and General Counsel isn’t seeking any relief or 6 remedy beyond the expiration of the current agreement, so I 7 don’t need to address those defenses here. 8 With respect to jurisdiction, Respondent has also admit- ted 9 in its amended answer that it is a Texas limited liability 10 corporation with offices and a place of business in Balch 11 Springs, Texas, where it is engaged in the construction in- dustry 12 as an electrical contractor. 13 Respondent further admitted that it annually provided 14 services valued in excess of $50,000 to commercial office 15 buildings within Texas, and that it derived gross revenues in 16 excess of a million dollars from these operations, and based 17 upon these admissions, I find that the Respondent is an employer 18 engaged in commerce within the meaning of Section 2, 19 subparagraphs (2), (6) and (7) of the Act, and Respondent has 20 further admitted that the union is a labor organization within 21 the meaning of Section 2(5) of the Act. 22 Now, with respect to the specific ULP, there’s really no 23 dispute. Respondent is a member of NECA, the North Texas 24 chapter, and as such, has recognized the union as the ex- clusive 25 collective-bargaining representative of its employees per- forming 145 1 electrical work within the union’s trade jurisdiction and 2 geographic jurisdiction, and that it is, in fact, a party to the 3 current collective-bargaining agreement that has been nego- tiated 4 between NECA and the union, which is effective until No- vember 30 5 of 2010. 6 The only issue raised by the pleadings, the only real 7 dispute here is whether the Respondent had a duty under the Act 8 to furnish the union with the information that it requested, and 9 that falls into two types of information, although having heard 10 all the evidence, it’s really all one category. 11 But the first allegation is that the union requested 12 answers to a list of 79 questions, probing the relationship 13 between the Respondent and several other entities, and the 14 request was initially made on April 4 of 2008 by letter, which 15 is in evidence, and the Respondent replied initially, also by 16 letter on April 18, 2008, not furnishing the information at that 17 time, but I’ll get into the contents of the correspondence when DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4 18 I get into the facts in more detail. 19 The second item of information is contained in a letter 20 dated June 9, which the letter reiterated the request for the 21 initial 79 pieces of information but also asked several 22 additional specific questions, one of which was an answer to the 23 question whether the Respondent tools had been retagged, and 24 we’ll get into that as I pursue this, and the Respondent did 25 reply to that information request. 146 1 As General Counsel pointed out, it answered some of the 2 questions. The only one it did not answer is the one regard- ing 3 the retagging of tools, and it also did not provide any an- swers 4 to those 79 questions in the questionnaire attached to the first 5 letter. And it was shortly thereafter—that was June 24, the 6 employer’s response—that the union actually filed the in- stant 7 charge. 8 Now, generally the parties -- at least General Counsel 9 went through a very long recitation of the case law, and the 10 Respondent has also cited several cases. There really isn’t any 11 legal dispute in this case as to what the law is. Everybody 12 knows that under Board law, an employer has the duty to provide 13 a union upon request with information that is relevant to the 14 performance of its statutory duties. Acme Industrial is the 15 lead case, and that’s 385 U.S. 432, a 1967 Supreme Court 16 decision. 17 And the duty extends not only to negotiations, but to 18 administration and enforcement of the collective- bargaining 19 agreement. It’s also pretty well established that in 20 determining relevance, the Board applies a very liberal 21 discovery-type standard, and essentially the Board has in- dicated 22 if the information is of any potential or probable relevance or 23 can be of use to the union in the administration of the 24 contract, then it meets the standard of relevance to supply 25 information in the collective-bargaining relationship. 147 1 Now, the particular type of information requested here 2 does not directly relate to unit employees’ wages, hours or 3 terms and conditions of employment which are presump- tively 4 relevant. Everyone agrees on that. 5 And everyone also agrees that where the union does re- quest 6 information concerning matters outside the bargaining unit, such 7 as information regarding the existence of a possible single 8 employer, double-breasted or alter ego relationship, the un- ion 9 has the burden of demonstrating relevance, and in addition to 10 the cases cited by the General Counsel, I would cite Shop- pers 11 Food Warehouse, 315 NLRB 257, a 1994 case; Contract Flooring 12 Systems, Inc., 344 NLRB 925 (2005); and Cannelton In- dustries, 13 339 NLRB 996 (2003). 14 And everyone agrees here as well that the standard for 15 relevance in these types of cases is whether the union has a 16 reasonable belief supported by objective evidence. I’ve heard 17 that from both sides in their closing arguments. So essen- tially 18 what we’re left with is a factual dispute as to whether, in 19 fact, such an objective basis for a reasonable belief exists in 20 this case. 21 Now, the General Counsel went on to cite a number of cases 22 where the Board has addressed that very issue and the types of 23 evidence that they found sufficient, and I won’t repeat all of 24 those cases. And as General Counsel has pointed out, the union 25 doesn’t need to prove the actual existence of any such 148 1 relationship. It doesn’t have to prove that any potential 2 grievance filed under the collective-bargaining agreement would 3 have merit. It doesn’t have to show that the information it 4 relies upon is accurate or ultimately reliable, and it can 5 reasonably rely on hearsay evidence. 6 Now, in the closing argument, Respondent indicated that 7 the language regarding the information not having to be ac- curate 8 or reliable was mere dicta, but if it is dicta, it’s been 9 repeated so many times in so many Board cases that it must have 10 the force of law at this time, and I have not come across a 11 single case where the Board has dealt with this type of 12 information where they have not used that phrase. So they must 13 mean it when they say that the information doesn’t have to PDK INVESTMENTS 5 be 14 accurate or ultimately reliable for the union to rely upon it in 15 making such a request. Otherwise, why would they repeat it so 16 frequently? 17 As the parties all agree, something more than a mere 18 suspicion or speculation must be shown in order to estab- lish 19 that the union is entitled to this type of information. Now, 20 the only current dispute which seems to exist in this area of 21 the law, which none of the parties have really addressed -- I 22 don’t think it’s really even of issue in this case -- is at what 23 point a union has to disclose these facts upon which it re- lies 24 in making a request for information regarding the exis- tence of 25 an alter ego, single employer or double-breasted relation- ship. 149 1 The Board historically has said that the union does not 2 need to produce -- to disclose the facts it’s relying upon. It 3 merely needs to state the reason it’s requesting this 4 information. Recently, based on some disagreement with the 5 Circuit Courts, two Board members indicated that they think that 6 the union does have to disclose the reasons. One of those Board 7 members is no longer on the Board, so I don’t know if the Board 8 will ever adopt that position. 9 But in any event, as I will indicate previously, in this 10 case the union did disclose not only its reason for request- ing 11 the information, but also a summary or a statement of the 12 evidence it was relying upon. And I’ll address whether that 13 evidence is, in fact, supported here, but at least the letter, 14 the last letter that was sent to the employer, did disclose a 15 recitation of facts that would meet even that standard that 16 Board member Schaumberg would require. 17 Now, in terms of the actual factual evidence, what the 18 General Counsel offered essentially in this case was the 19 testimony of one witness, the union’s business manager and 20 financial secretary and the author of the information re- quest, 21 Mr. A.C. McAfee. 22 And Mr. McAfee testified that shortly before he sent the 23 first letter on April 4, he received a report from one em- ployee, 24 Rudy Ayala, that this individual had been approached by the 25 employer, PDK Investments, and offered the opportunity to work 150 1 for the nonunion side of the company and that a company called 2 Guild Commercial and Tenant Services was operating out of the 3 same location with the same officers as PDK Investments. 4 Now, Mr. McAfee testified that this report led him to be 5 concerned whether the Respondent was operating an alter ego, and 6 he cited the contract recognition clause as well as the 7 jurisdictional language in the contract, defining the union’s 8 work as indicating that it would be violated if the Respon- dent 9 had, in fact, set up an alter ego to avoid its obligations under 10 the contract and not pay the wages and benefits required. 11 As a result, Mr. McAfee sent the April 4 letter, and the 12 letter -- I’ll quote it for the record. He addressed it to Mr. 13 Zagar at PDK Investments’ Balch Springs, Texas, address. 14 It says, “IBEW Local Union 20 has become aware that your 15 company has been operating Guild Commercial and Ten- ant Services 16 as a nonunion company. As part of IBEW Local Union 20 17 investigations of this matter, we are contacting you directly 18 for pertinent information. We require that you supply us with 19 information concerning PDK Investments, LLC, relation- ship with 20 nonunion company for the purpose of administering the in- side 21 agreement. 22 “Please respond to the attached questionnaire which is 23 directed at the time period of the most recent labor agree- ment. 24 Please provide all information. To determine the 25 appropriateness of a grievance and/or determine whether these 151 1 matters can be resolved in negotiations in a timely fashion, 2 IBEW Local 20 requires a response within two weeks from the date 3 of this letter.” 4 So the letter, while stating a reason as I think indicated 5 previously, did not set forth what the union was relying upon in 6 making the request. Attached to the letter is a 16-page DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6 7 questionnaire consisting of 79 questions, asking for detailed 8 information regarding the Respondent and the purposed nonunion 9 company, and this is a questionnaire, either identical or 10 similar to one which the Board has dealt with in other cases, 11 cited -- I think General Counsel has cited some of the cases 12 where this questionnaire has come up. 13 And all of the information seems to relate to what the 14 Board would normally look to if it were evaluating an alter ego 15 case in terms of the multitude of factors that the Board has 16 indicated it considers in determining whether an employer is an 17 alter ego or a single employer, and the Board has also in al- ter 18 ego cases said no one factor is determinative. 19 Although some factors, such as common ownership and 20 control of labor relations, are more important than others, 21 certainly all of the items in the questionnaire would relate to 22 those types of factors that the Board would look at if it were 23 evaluating alter ego case. 24 Now, Mr. McAfee testified further that he didn’t stop with 25 the sending of the letter, but that, in fact, he continued to 152 1 investigate. He assigned an official or someone from his 2 office, Chris Williams, to observe personally what was go- ing on 3 at the company’s facility, as well as at various work sites. 4 He testified that he also checked out a website, and as 5 Mr. Buchanan correctly points out, he did not identify the exact 6 website he looked at, and he really did not -- Mr. McAfee did 7 not tell us what he saw on the website, other than that there 8 were a number of Guild companies or companies with the Guild 9 name operating out of the same address with common of- fices, but 10 that is, at least, information that he did address and identify 11 personally having observed. 12 In addition, while awaiting a response from the Re- spondent 13 to the April 4 letter, he received a handwritten statement from 14 another employee of the Respondent and a member of the union, 15 Mr. Terrell, and that’s in evidence as General Counsel’s Exhibit 16 6. And the statement which I will read in its entirety states 17 that: 18 “At 3:25 p.m. on April 9, ‘08, Paul Prachyl came to the 19 Crescent office complex to deliver a breaker for Tom McMann. At 20 that time, he informed Tom and I that Guild Commercial and Guild 21 Electric would be splitting up and not share the same office 22 space. Guild Commercial would keep the shop in Balch Springs, 23 and the union side would find new office space. After he made 24 the delivery, he was to look at a new location. 25 “Paul also made the statement that we, the union side, 153 1 would be taking direction from him and him only, and not from 2 anyone from someone from the Guild Commercial side. Paul 3 instructed us to start painting over the Guild name on our 4 ladders and tools and mark PDK on all the tools and lad- ders. 5 The Guild name would remain with the open shop, and the union 6 side would maybe get a new name, PDK. 7 “He also said the trucks would still have the Guild name 8 no them. The union side would sub work from the open shop side 9 as needed. Tom McMann and I were told this information together 10 on April 9, 2008.” 11 And Mr. McAfee indicates that this is information that, in 12 fact, he did receive and rely upon in pursuing the informa- tion 13 request that he initially made on April 4. Now, Mr. McAfee also 14 testified that he received reports from Mr. Williams, indi- cating 15 that another company, Guild Commercial and Tenant Ser- vices, was 16 observed performing electrical work at commercial build- ings 17 where the Respondent was or previously had worked as a union 18 contractor, and that a vehicle with the word “Guild” on the 19 side -- and he did not identify any other logo or language on 20 the truck other than that -- had been seen delivering mate- rial 21 to both union and nonunion jobs. PDK INVESTMENTS 7 22 Now, while this investigation was going on, the Re- spondent 23 did finally reply to the April 4 letter with a letter from Mr. 24 Zagar dated April 18, which acknowledged receipt of the union’s 25 request and the accompanying questionnaire and stated that, “In 154 1 order to evaluate your request for this voluminous informa- tion, 2 please explain the particular relevance of each question and 3 subpart of the question.” 4 Now, Mr. McAfee admittedly did not respond to that re- quest 5 until June 9 of 2008, and he testified that that was because he 6 was continuing to investigate and receive this information that 7 he described before preparing his response. Now, in this 8 response which was dated June 9, Mr. McAfee, at para- graph 2, 9 answers, in fact, the question from Mr. Zagar as to the 10 explanation for the relevance of the information. 11 In the letter, Mr. McAfee states, “Local 20 formulated its 12 information request after it was brought to Local 20’s at- tention 13 that furloughed union members were being encouraged to perform 14 work for the nonunion side of the shop.” And that appar- ently 15 relates to Mr. Ayala’s statement to him about someone of- fering 16 him employment opportunity with the nonunion company. 17 “Upon further investigation,” the letter continuing, 18 “Local 20 learned, among other things, that Guild Electric, 19 Guild Technologies, PDK Investments, and/or GCATS Investments 20 have been sharing the same office, mailing address, web- site, 21 warehouse, equipment and personnel.” And this appar- ently refers 22 to what Mr. McAfee observed on the website, although as Mr. 23 Buchanan points out, he only identified in his testimony having 24 seen that they shared the same office and officers. 25 “Moreover, the alleged nonunion side has been per- forming 155 1 work that in the past had been performed union.” And this is in 2 reference to the reports that Mr. McAfee had received from Mr. 3 Williams, as well as the handwritten statement from Mr. Terrell. 4 And then Mr. McAfee goes on in his letter, quoting, “Since 5 my letter of April 4, 2008, it has come to my attention that 6 Guild, Guild Technologies, PDK, and GCATS have made several 7 operational changes. In addition to answering my letter of 8 April 4, 2008, please describe in detail each operational change 9 made by Guild, Guild Technologies, PDK, and/or GCATS since April 10 4, 2008, including but not limited to whether tools have been 11 retagged, offices have been moved, supervisors have been 12 reassigned, and changes have been made to payroll prac- tices.” 13 And these are clear references to items that have been 14 highlighted in Mr. Terrell’s statement that was faxed to Mr. 15 McAfee in April. 16 Okay. Now, the reply that Mr. McAfee received is the June 17 24, 2008, letter from Mr. Zagar in which he acknowledges receipt 18 of the June 9 letter and states that—claims that the union— 19 and I’ll quote—“failed to provide any justification or 20 explanation of the relevance of the 79 questions submitted in 21 early April. Your failure to do so confirms that this 22 burdensome questionnaire is nothing more than a fishing 23 expedition.” 24 Then Mr. Zagar purports to go on and respond to each of 25 the specific questions that were asked in the June 9 letter, and 156 1 in answering those questions, in fact, Mr. Zagar confirms at 2 least one of the reports that Mr. McAfee had received from Mr. 3 Terrell, which is that, in fact, PDK Investments, LLC, did move 4 its office recently. 5 And although it states it was to get closer to its 6 longstanding customers and markets and hopefully grow its 7 business opportunities, certainly that’s a confirmation that the 8 information that Mr. McAfee had received from Mr. Terrell was 9 more than a mere suspicion or speculation, and it also lends 10 some credence to whatever Mr. Terrell had reported he DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8 was told 11 by Mr. Prachyl. 12 Now, in response to -- and that essentially -- I mean, 13 General Counsel called 6(11)(c) Mr. Zagar, but really did not 14 offer much other evidence, other than Mr. McAfee’s which is the 15 heart of the case. 16 In response to this evidence, the Respondents essen- tially 17 attempted to show that these reports that Mr. McAfee was relying 18 upon from the employees, Mr. Ayala, Mr. Terrell, and Mr. Bryant, 19 were unreliable, because each for his own reason had a grudge 20 against the employer and a reason not to tell the truth. 21 Respondent also attempted to show that the union was 22 mistaken in its belief that the companies were operating out of 23 a common facility or using the same trucks and equipment or 24 performing some work, but it’s clear from the response of the 25 June 24 letter that at least until recently, they probably had 157 1 been operating out of the same facility, and it was only 2 recently that PDK moved. 3 And the fact that -- even though Respondent claims that 4 the union may have been mistaken and offered to show that, in 5 fact, the companies were separate and not double-breasted or 6 single employer alter ego, the Respondent is attempting to rely 7 on evidence that it did not share with the union in the first 8 instance, and information that’s peculiarly within the 9 possession of the Respondent, and certainly that does not negate 10 the evidence that the union had upon which it relied in forming 11 its belief that there was something going on that would impact 12 the collective-bargaining unit. 13 With respect to the claims that the employee reports could 14 not be relied upon, that the individuals were not credible 15 because they had been either demoted or terminated or there 16 might have been a criminal complaint against one of them, 17 certainly with respect to the criminal complaint, Mr. McAfee was 18 not even aware of it at the time that he received the report 19 from Mr. Ayala, so it certainly would not have played any role 20 in his thinking in terms of whether Mr. Ayala’s report was 21 accurate or not. 22 And although they may have had some disagreements with the 23 company, that by itself does not indicate that their state- ments 24 could not be believed, certainly where subsequently the 25 Respondent confirmed at least one of the statements from Mr. 158 1 Terrell indicating that there had been a change in the com- pany, 2 i.e., a recent move, which tends to support that maybe some of 3 the other statements made to Mr. Terrell also were accurate. 4 And anyway even if, as the General Counsel points out, 5 even if these reports from these employees turned out to be 6 unreliable or inaccurate, if the information was fully 7 disclosed, the Board has held that the union can rely on 8 information, including hearsay and including information that 9 ultimately is unreliable or inaccurate, in making this request. 10 And also the union, in Shoppers Food Warehouse -- I’ll cite that 11 again that stands for that proposition. 12 And also, too, I’ll note that the actions that Respondent 13 took after the request for information on April 4 as related to 14 Mr. Terrell and reported to Mr. McAfee, including the re- cent 15 move of its office, showing an attempt to physically sepa- rate 16 the two companies would also lend support to the reason- ableness 17 of the belief that, in fact, the companies were somehow re- lated. 18 And I won’t address again my earlier ruling that the 19 proffer of evidence by the Respondent in order to show that the 20 various Guild companies and the Respondent were, in fact, 21 separate entities is not relevant, because as I think it’s 22 clear, it’s not necessary in this case to determine whether 23 there was, in fact, a single employer or an alter ego, and by 24 making a finding with respect to the information request, that 25 does not indicate that there is, in fact, such a relationship 159 1 that existed. PDK INVESTMENTS 9 2 All it says is that the union has raised enough of a 3 question, enough of a concern, that the Respondent is re- quired 4 as a party to the collective-bargaining relationship to share 5 the information that the union can determine whether or not 6 there is any basis to go forward with either a grievance or any 7 other complaint or claim. 8 And one other thing I’ll point out with respect to the 9 Respondent’s argument in closing, that none of the evidence that 10 the GC or the union offered was objective or an objective fact, 11 you know, Respondent argued that the mere fact that the name 12 Guild appeared on the side of a truck doesn’t mean any- thing, 13 because there are so many different Guild companies, but 14 essentially that’s one of the reasons why the union had cause to 15 be concerned, because the Respondent apparently over the years 16 has used various Guild names, even with respect to the re- jected 17 exhibits for both the union signatory contractor and appar- ently 18 another company that existed. 19 The fact that the Respondent chose to use a name that was 20 so similar certainly can’t be a reason to deny the union’s 21 request for information. Such a practice only tends to cre- ate 22 the type of confusion or suspicion or concern that would lead a 23 union to suspect that there was something amiss. 24 So having considered all of the evidence and consid- ered 25 the arguments of the parties and not wanting to cite all of the 160 1 cases that General Counsel has cited, I will find that the 2 General Counsel and the Union have met their burden of showing 3 that the union had a reasonable belief, based on objective 4 facts, that would be sufficient to warrant the request for the 5 information that was made to the Respondent, both in the April 4 6 letter and in the June 9 letter for the information regarding 7 the retagging of tools. 8 And what I will do is I will cite to a decision by my 9 colleague Judge Fish in a case called Dodger Theatrical 10 Holdings, Incorporated. that’s 347 NLRB Number 94, a decision 11 which was adopted by the Board in which Judge Fish went through 12 a rather detailed history of the law in this area, and in 13 particular I’ll cite -- this is a slip decision still; I don’t 14 think it’s bound volume yet. 15 And at page 16 of the slip decision, he goes through a 16 rather exhaustive review of the many cases where the Board has 17 determined whether the union satisfied this burden, and the 18 types of evidence in all these various cases that the Board has 19 found sufficient to meet the requirement of a reasonable belief 20 based on objective facts, and many of the things that are cited 21 in these cases by Judge Fish are very similar to the types of 22 information that the union and Mr. McAfee was relying upon in 23 making his request here. And I see no reason in this case to 24 depart from that long-established and well-settled Board 25 precedent. 161 1 Now, having found that the information was relevant to the 2 union and also necessary for it to evaluate whether there was a 3 contract violation or the possibility for a grievance if, in 4 fact, there turned out to be an alter ego or a single employer, 5 I will find that the complaint has been violated as alleged by 6 the General Counsel. 7 Now, I find, though, that the date of the violation would 8 occur on June 24 of 2008 and Mr. Zagar’s last letter to the 9 union. The initial response to the April 4 request was not a 10 refusal to furnish information, but a request for a further 11 explanation. And certainly when information is requested that 12 goes beyond the bargaining relationship in these types of cases, 13 the Board has indicated that an employer that is not certain of 14 the reason for the request has a right to ask for a further 15 explanation. 16 But I find that the union did provide a sufficient further 17 explanation in the June 9 letter in which it also requested the 18 information regarding the retagging of tools, and that the 19 Respondent’s failure to answer those questions and con- tinuing 20 refusal to respond to the questionnaire as shown in the June 24 21 letter constitutes the unfair labor practice under Section 22 8(a)(5) of the Act. 23 Now, I will prepare, when I prepare my written order, a DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10 24 notice and an order that will be consistent with these types of 25 cases. Under the Board’s Rules and Regulations with a bench 162 1 decision, essentially what I’m required to do now is upon 2 receipt of the transcript containing the bench decision, I must 3 certify the accuracy of the transcript pages, make any 4 corrections if necessary, and then serve a copy of that with the 5 recommended order on the parties, and from that date, the 6 parties have their rights to file any exceptions to my deci- sion, 7 to any findings that I’ve made, and any rulings that I may have 8 made at the hearing. 9 And I’ll refer you to the Board’s Rules and Regulations 10 with respect to the procedure for how to go about filing any 11 exceptions with the Board in Washington. So at this point, 12 you’ll have to await the transcript and my actual written order, 13 certifying the bench decision, and attached to that will be the 14 order that I will be recommending to the Board.