PDK Investments, LLC

National Labor Relations Board - Administrative Judge Opinions

Dec 29, 2008

16-CA-026292 (N.L.R.B. Dec. 29, 2008)

JD(ATL)–44–08
Balch Springs, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTA BRANCH OFFICE
DIVISION OF JUDGES
PDK INVESTMENTS, LLC
and Case No. 16–CA–26292
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION 20
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, upon request, with relevant information that was necessary for the
Union to perform its duties as exclusive collective-bargaining representative 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 affirmative 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
decision 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 several 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 refused to furnish any of the information requested by the Union, I
concluded that the Respondent had violated the Act as alleged. See Shoppers Food

1 All dates are in 2008 unless otherwise indicated.
2 The General Counsel agreed that the parties have a Section 8(f), rather than 9(a)
relationship.
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Warehouse, 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 through 162,
containing my bench decision. A copy of that portion of the transcript is attached to this decision
as “Appendix A”.
Conclusions 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 Section 8(a)(1) and (5) and Section
2(6) and (7) of the Act.
Remedy
Having found that the 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. 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
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 Brotherhood of Electrical Workers,
Local Union 20, by failing and refusing to provide the Union with relevant and necessary
information requested by the Union in its April 4, 2008 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 effectuate 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 Respondent’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

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 Board and all objections to them shall be deemed
waived for all purposes.
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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 facility in Balch Springs, Texas,
copies of the attached notice marked “Appendix B.”4 Copies of the notice, on forms provided 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 altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
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.
Dated, Washington, D.C., December 29, 2008.
____________________
Michael A. Marcionese
Administrative Law Judge

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 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.”
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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 arguments
22 that the parties have made in closing and reviewed the evidence,
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
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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 complaint
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
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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 admitted
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 industry
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
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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 exclusive
25 collective-bargaining representative of its employees performing
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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 negotiated
4 between NECA and the union, which is effective until November 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
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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 regarding
3 the retagging of tools, and it also did not provide any answers
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 instant
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
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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 indicated
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 presumptively
4 relevant. Everyone agrees on that.
5 And everyone also agrees that where the union does request
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 union
9 has the burden of demonstrating relevance, and in addition to
10 the cases cited by the General Counsel, I would cite Shoppers
11 Food Warehouse, 315 NLRB 257, a 1994 case; Contract Flooring
12 Systems, Inc., 344 NLRB 925 (2005); and Cannelton Industries,
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 essentially
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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 accurate
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 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
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18 suspicion or speculation must be shown in order to establish
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 relies
24 in making a request for information regarding the existence of
25 an alter ego, single employer or double-breasted relationship.
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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 requesting
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
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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 request,
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 employee,
24 Rudy Ayala, that this individual had been approached by the
25 employer, PDK Investments, and offered the opportunity to work
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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 Respondent
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 Tenant Services
16 as a nonunion company. As part of IBEW Local Union 20
17 investigations of this matter, we are contacting you directly
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18 for pertinent information. We require that you supply us with
19 information concerning PDK Investments, LLC, relationship with
20 nonunion company for the purpose of administering the inside
21 agreement.
22 "Please respond to the attached questionnaire which is
23 directed at the time period of the most recent labor agreement.
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
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 alter
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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
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1 investigate. He assigned an official or someone from his
2 office, Chris Williams, to observe personally what was going 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 offices, 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 Respondent
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:
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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,
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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 ladders.
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 information
13 request that he initially made on April 4. Now, Mr. McAfee also
14 testified that he received reports from Mr. Williams, indicating
15 that another company, Guild Commercial and Tenant Services, was
16 observed performing electrical work at commercial buildings
17 where the Respondent was or previously had worked as a union
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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 material
21 to both union and nonunion jobs.
22 Now, while this investigation was going on, the Respondent
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
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1 order to evaluate your request for this voluminous information,
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 request
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 paragraph 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 attention
13 that furloughed union members were being encouraged to perform
14 work for the nonunion side of the shop." And that apparently
15 relates to Mr. Ayala's statement to him about someone offering
16 him employment opportunity with the nonunion company.
17 "Upon further investigation," the letter continuing,
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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, website,
21 warehouse, equipment and personnel." And this apparently 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 performing
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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 practices."
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
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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
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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 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 essentially
17 attempted to show that these reports that Mr. McAfee was relying
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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
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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
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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 statements
24 could not be believed, certainly where subsequently the
25 Respondent confirmed at least one of the statements from Mr.
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1 Terrell indicating that there had been a change in the company,
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 recent
15 move of its office, showing an attempt to physically separate
16 the two companies would also lend support to the reasonableness
17 of the belief that, in fact, the companies were somehow related.
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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
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1 that existed.
2 All it says is that the union has raised enough of a
3 question, enough of a concern, that the Respondent is required
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 anything,
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 rejected
17 exhibits for both the union signatory contractor and apparently
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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 create
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 considered
25 the arguments of the parties and not wanting to cite all of the
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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
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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.
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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
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18 information regarding the retagging of tools, and that the
19 Respondent's failure to answer those questions and continuing
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
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
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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 decision,
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.
APPENDIX B
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to bargain collectively with International Brotherhood of Electrical
Workers, Local Union 20 by refusing to furnish the Union, upon request, with information that is
relevant and necessary to the Union’s representation of you.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL furnish the Union with the information it requested in its April 4, 2008 and June 9,
2008 letters to us.
PDK INVESTMENTS, LLC
(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.
819 Taylor Street, Room 8A24
Fort Worth, Texas 76102-6178
Hours: 8:15 a.m. to 4:45 p.m.
817-978-2921.
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, 817-978-2925.