PDK Investments, LLC

National Labor Relations Board - Board Decisions

Apr 24, 2009

354 NLRB No. 1 (N.L.R.B. 2009)

354 NLRB No. 1
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
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,

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).
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Delete paragraph 2(b) and reletter the subsequent
paragraphs accordingly.
2. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. April 24, 2009
Wilma B. Liebman, Chairman
Peter C. Schaumber, Member
(SEAL) 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 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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
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.

1 All dates are in 2008 unless otherwise indicated.
2 The General Counsel agreed that the parties have an 8(f), rather
than 9(a) relationship.
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
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

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 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
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.
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-
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
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
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
PDK INVESTMENTS 5
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
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
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 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-
PDK INVESTMENTS 7
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.
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
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 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
PDK INVESTMENTS 9
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.
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
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
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.
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to bargain collectively with International
Brotherhood of Electrical Workers, Local Union 20 by refusing
to furnish the Union, on request, with information that is rele-
vant and necessary to the Union’s representation of you.
WE WILL NOT in any like or related manner interfere with, re-
strain, 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 and June 9, 2008 letters to us.
PDK INVESTMENTS, LLC