Pence Construction Corp.

National Labor Relations Board - Board Decisions

Sep 8, 1986

281 N.L.R.B. 322 (N.L.R.B. 1986)

322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pence Construction Corporation and United Broth-
erhood of Carpenters and Joiners of America
Local Union No . 1266 and Austin Chapter, As-
sociated General Contractors of America, Inc.,
Party to the Contract. Case 23-CA-10175
8 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 30 June 1986 Administrative Law Judge
Lawrence W. Cullen issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup-
port of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Pence Con-
struction Corporation, Austin, Texas, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Guadalupe Rutz, Esq., for the General Counsel.
L. G. Clinton Jr., Esq., of Houston, Texas, for Respond-
ent.
Dean A. Pinkert, Esq. (Fickman, Van Os, Waterman,
Dean & Moore), and Mark Mullen, of Austin, Texas,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This case was heard before me at Austin, Texas, on 16
April 1986. The charge was filed by United Brotherhood
of Carpenters and Joiners of America, Local Union No.
1266 (the Union), on 25 September 1985,1 and the com-
plaint issued on 21 November 1985 alleging that Pence
Construction Corporation (the Respondent), violated
Section 8(a)(5) and (1) of the National Labor Relations
Act (the Act), by refusing to provide the Union with
"certain and specific information relating to the business
relationship of Respondent and its affiliate, Fulshear Cor-
poration." The primary issue presented is whether the
Union, as representative of the carpenter employees of
Pence, had a basis for reasonably believing that Pence
' All dates are in 1985 unless otherwise indicated
was operating an "alter ego" operation through Fulshear
and whether the information requested of Pence on that
subject was relevant and necessary to the Union in ful-
filling its statutory responsibility in representing the em-
ployees.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel, the Union, and Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Texas corporation with its principal
office and place of business located in Bellaire , Texas,
with jobsites in Austin, Texas, where it is engaged in the
business of construction. During the 12-month period
preceding issuance of the complaint, Respondent in the
course and conduct of its business operations purchased
products, goods, and materials valued in excess of
$50,000, which were shipped to its jobsites located
within the State of Texas directly from points located
outside the State of Texas. The complaint alleges, Re-
spondent in its answer admits, and I find, that Respond-
ent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
The complaint also alleges , Respondent admits, and I
find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
It is undisputed that at all material times Respondent
was, and so far as the record shows, still is, a member of
the Austin (Texas) Chapter of the Associated General
Contractors of America (AGC). The complaint alleged
and Respondent admitted that since 24 January 1975 the
Union and AGC were parties to collective-bargaining
agreements , the most recent of which, originally effec-
tive from 1 April 1984 to the following 31 March, was
extended on 29 to 31 March 1986. Respondent admits
that it was a party to, and bound by, the AGC agree-
ment, which "covered all carpenters" including carpen-
ter apprentices performing "work recognized as being
under the jurisdiction of United Brotherhood of Carpen-
ters and Joiners of America by the Building and Con-
struction Trades Department, AFL-CIO." The com-
plaint alleges , and Respondent denies, that an all carpen-
ter employee unit, including carpenter apprentices and
carpenter foremen excluding office clerical employees,
guards, and supervisors as defined in the Act, constitutes
a unit appropriate for collective bargaining within the
meaning of the Act. It appears that the AGC agreement
did set the ratio of carpenter foremen to carpenters and
provided for their rate of pay. Moreover, Mark Mullen,
business agent of the Union, testified that the unit did in
fact include carpenter foremen. In light of Mullen's un-
contradicted testimony on the point, I find the unit as set
281 NLRB No. 49
PENCE CONSTRUCTION CORP.
forth in the complaint to be an appropriate one. Re-
spondent concedes that at all material times the Union
was the exclusive representative of all the employees in
the appropriate bargaining unit.
It is undisputed that Respondent , consistent with the
AGC agreement, used the Union as the source of its car-
penters in the Austin area . According to Mullen, all of
Respondent's carpenters were members of the Union. In
late 1984, Respondent completed two jobs within the
Union 's jurisdiction in Austin known as the Promentary
Point job and the Brodie Oaks Shopping Center job on
which it used carpenters . There is no evidence that Re-
spondent undertook any subsequent jobs in the Austin
area solely under its own name.
Mullen testified that he first became suspicious of a
possible relationship between Respondent and Fulshear
Corporation, a company which had no bargaining agree-
ment with the Union , in approximately July 1983 when a
supervisor of Fulshear , Gerald Allen, was brought from
the Houston vicinity to work for Respondent on an
Austin job . Allen joined the Union at that time . Subse-
quently, Mullen learned Allen went back to work for
Fulshear in the Austin area . Mullen's suspicion was in-
creased by Ron Hutcheson, a superintendent of Respond-
ent, who, when requesting referral of carpenters from
the Union , would remind Mullen to send him men who
would produce on the job and if they did not produce
Respondent would bring Fulshear in to do the work.
Mullen testified that he was unconcerned about Hutche-
son's remarks as long as Respondent was continuing to
work and utilizing the Union's referrals.
Mullen subsequently became concerned after Respond-
ent completed its Austin projects in late 1984 and there-
after undertook no other work in the Austin area. Mul-
len's concern was further aroused by the fact that he no-
ticed an Austin phone book address for Fulshear, which
was the same for Respondent . Around the same period
of time, according to Mullen , Steve Sissom, a carpenter
for Respondent on the Brodie Oaks job, inquired of the
existence of any relationship between Respondent and
Fulshear and whether employees of Respondent would
be going to work for Fulshear . Further, Mullen noted
that Respondent had ceased making the fringe benefit
contributions for Gerald Allen although Mullen had seen
Allen continuing to work on the Promentary Point site
where Respondent had worked.
Mullen further related that he also saw a job list
naming Fulshear 's superintendents and noted among
them about six former employees of Respondent. Be-
tween January and March 1985 , Mullen sought and ob-
tained from the Texas Secretary of State 's office a report
on the officers of Fulshear and .Respondent . This report
showed that the two corporations had separate postal
box numbers in Bellaire, Texas, and that one officer,
Linda Farthing, served as secretary for Respondent and
secretary and treasurer for Fulshear . The report further
revealed that Respondent was 100-percent owner of Ful-
shear.
In April, Mullen received a Dodge report, a publica-
tion reflecting job awards in the construction industry in
the area. That report reflected a job undertaken by
323
"Fulsher [sic] Pence Construction Co." listing as the ad-
dress the same phone book address noted by Mullen.
Other evidence of a relationship between Respondent
and Fulshear was revealed in the testimony of former
Respondent employees Steve Sissom, Kenneth Mar-
chioni, and Billy Hyde Jr . Thus, Sissom testified that
when he worked for Respondent on the Brodie Oaks job
he noted that some reinforcing steel received on the job
was addressed to Fulshear . This was corroborated by the
testimony of Marchioni also employed on the Brodie
Oaks job who related he was told by Hyde, a carpenter
foreman at the time, that the material addressed to Ful-
shear was nevertheless to be used by Respondent. Mar-
chioni credibly testified, and without contradiction, that
it was his understanding gained from discussions with
Hyde and Jerry Randall , Respondent's job superintend-
ent on the Brodie Oaks job , that the job would be the
last for Respondent and it was going to be "pretty
much" Fulshear after that. Marchioni said he related the
foregoing to Mullen in early 1985 . The testimony of
Sissom and Marchioni concerning receipt of Fulshear
material on the Pence job was corroborated by Hyde.
By letter dated 14 May addressed to John J . Pence,
president of Respondent , Mullen advised Respondent
that "we have reason to believe that the ownership of
Pence Construction Corporation has established an alter
ego, Fulshear Corporation , which should properly be a
party to the current collective-bargaining agreement be-
tween Pence Construction Corporation and the Union."
The letter enclosed a detailed list for information regard-
ing the business relationship between Respondent and
Fulshear, which the letter asserted was "necessary and
relevant to our duty to administer and enforce the col-
lective-bargaining agreement." The list of requested in-
formation was a lengthy one , and because no contention
is made by Respondent that any specific information
sought therein was not relevant to the purposes for
which the information was sought it need not be listed
here . It is undisputed that Respondent did not reply to
the request. In the absence of a response , Mullen, by
letter dated 23 May, advised Respondent:
Pursuant to Article VI of the current collective-bar-
gaining agreement, the Union hereby charges you
with violating Articles I, II, IV, and all other appli-
cable provisions of the agreement by bidding and
working jobs through another entity under your
control, or with which you share control, for the
purpose of evading your collective bargaining obli-
gations with the Union.
Notwithstanding the Union 's request for a meeting, there
appears to have been no reply by Respondent. The
Union thereafter filed an action in the Federal district
court to compel arbitration . The action appears to have
been pending at the time of the hearing herein.
Respondent presented no independent evidence at the
hearing bearing on the issues in the case.
B. Arguments of the Parties
The General Counsel, relying on NLRB v. Acme In-
dustrial Co., 385 U.S. 432 (1967); and AGC of California,
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
242 NLRB 891 (1979), enfd. 633 F.2d 766 (9th Cir.
1980), asserts that an employer must furnish a union with
requested information if there is a probability that such
information is relevant and will be of use to the union in
fulfilling its statutory duties and responsibilities as the
employees' exclusive bargaining representative. He notes
that the Board , in determining the relevancy of any re-
quested information, utilizes a liberal discovery-type
standard. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956).
Noting that information regarding terms and conditions
of employment of employees represented by a union is
presumptively relevant and necessary, the General Coun-
sel concedes that information requested of an employer
about employees or operations other than those repre-
sented by the union does not enjoy the same presump-
tion . Ohio Power Co., 216 NLRB 987 (1975), enfd. 531
F.2d 1381 (6th Cir. 1976). In such situations , the burden
is on the union to establish the relevance of the requested
information. However, the General Counsel argues that
the information gathered by Mullen, and as set forth
above, provided an objective factual basis for believing
that unit work was being diverted from Respondent
making the relevancy of the information requested fully
established by the record. Accordingly, the General
Counsel argues that Respondent's refusal to provide the
information requested by the Union was violative of Sec-
tion 8(a)(5) and (1) of the Act as alleged. The Charging
Party similarly supports the General Counsel's arguments
in its brief.
At the hearing Respondent presented no relevant inde-
pendent evidence on the issue in the case. Rather, it
relied on the argument made in its brief that the record
did not indicate that the Union had any factual basis for
believing that Fulshear was an alter ego of Respondent
or that Pence was transferring any work to Fulshear. Re-
spondent asserts that there was no grievance pending at
the time of the request to which the requested informa-
tion would have been relevant nor could the information
requested have been relevant to the negotiation of a col-
lective-bargaining agreement because the request for in-
formation occurred 1 month after the commencement of
the latest contract extension which had been negotiated
by the Union. Thus, Respondent asserts that the Union
has not met its burden of establishing the relevancy of
the requested information.
Respondent in its answer raised as an affirmative de-
fense the contention that a suit filed by the Union on 9
August 1985 in the United States District Court for the
Western District of Texas against Pence Construction
Company to compel arbitration included all the issues
raised in the instant case and would be res judicata to the
Charging Party and constitute judgment by estoppel to
the National Labor Relations Board. Respondent did not
allude to this argument in its brief and based on other
pleadings in the case it appears that the district court's
action was still pending without decision at the time of
this hearing. Under the doctrine of res judicata, "a judg-
ment 'on the merits' in a prior suit involving the same
parties or their privies bars a second suit based on the
same cause of action." Lawlor v. National Screen Service
Corp., 349 U.S. 322, 326 (1955). There being no prior
judgment in the Federal court case, the doctrine of res
judicata is not applicable here. Also, because of the ab-
sence of judgment, the doctrine of collateral estoppel
does not apply. Under that doctrine, a judgment on the
merits in the prior suit involving the same parties or their
privies "precludes relitigation of issues actually litigated
and determined in the past prior suit, regardless of
whether it was based on the same cause of action as the
second suit." Lawlor v. National Screen Service, supra.
C. Analysis and Conclusions
As the parties all recognized, when a union has re-
quested information with respect to matters occurring
outside the bargaining unit represented by the union, the
burden is on the union to demonstrate more precisely
that the information is relevant. Pfizer, Inc., 268 NLRB
916 (1984), Ohio Power Co., supra. Thus, while the union
has the burden of showing relevancy on nonunit infor-
mation, that burden is not an exceptionally heavy one.
And, the information requested need not necessarily be
dispositive of the issue between the parties. It must only
have some bearing on it. Pfizer, Inc., supra, 918. An em-
ployer must furnish information that has probable or po-
tential relevance to the union's performance of its duties
and obligations since a broad discovery rule is crucial to
full development of the role of the collective bargaining
contemplated by the Act. Conrock Co., 263 NLRB 1293
at 1294 (1982); E. I. duPont & Co., 276 NLRB 335
(1985); Printing Pressman Local 13 v. NLRB, 598 F.2d
267, 271 (D.C. Cir. 1979).
The Board has held that information requested by a
union of an employer concerning the existence of a
"double-breasted" or alter ego operation falls into the
category of information which is not presumptively rele-
vant. See Proctor Mechanical Corp., 279 NLRB 201
(1986); Bohemia, Inc., 272 NLRB 1128 (1984). The
burden then in such situations is on the union to establish
the relevancy of the requested information as an aid to
investigation of a contract violation. To satisfy this
burden, the union "must show that it had a reasonable
belief that enough facts existed to give rise to a reasona-
ble belief that the two companies were in legal contem-
plation a single employer." Walter N. Yoder & Sons, Inc.,
754 F.2d 531 at 536 (4th Cir. 1985), enfg. 270 NLRB 652
(1984). To establish a violation of the Act alleged here, it
is not necessary for the Union to show that the requested
information, if supplied, would in fact establish the exist-
ence of a "double-breasted" or alter ego operation and a
resulting contract violation. NLRB v. AGC of California,
633 F.2d 767, 771 fn. 6 (9th Cir. 1980).
Respondent suggests in its brief that the information
requested here cannot be considered relevant because the
information was not shown to be necessary for contract
negotiations or for the processing of any pending griev-
ances . While the pendency of a grievance pertaining to
the double-breasted operation at the time of the Union's
request and the absence of contract negotiations may
constitute factors bearing on the relevancy of the re-
quested information, the absence of such factors does not
preclude a finding that the requested information was
relevant. The obligation to supply a union with requested
information extends not only to information for contract
PENCE CONSTRUCTION CORP.
negotiations but also to that which is necessary for the
informed administration of a collective -bargaining agree-
ment . Safeway Stores, 252 NLRB 1323 (1980); Westing-
house Electric Corp ., 239 NLRB 106 (1978). And, "a
union is entitled to its requested information in order to
determine whether it should exercise its representative
function by filing a grievance or bargaining about a dis-
pute." Doubarn Sheet Metal, 243 NLRB 821 , 823 (1979).
Considering the instant case in light of the foregoing
principles , I am convinced that the Union has established
a reasonable objective basis for its belief that Respondent
and Fulshear were engaged in nonunion operations
within the geographic area covered by the Union's bar-
gaining agreement with Respondent . Thus, in 1984, Re-
spondent 's representative Hutcheson had threatened
Business Agent Mullen that if the Union's carpenters did
not produce Fulshear would be brought in to do the
work. Subsequently , Mullen learned from Sissom that
Respondent utilized job materials labeled for Fulshear,
clearly suggesting an interchange of materials between
the firms . Respondent and Fulshear shared the same
office address in Austin. Mullen learned from state
records that Fulshear was a fully owned subsidiary of
Respondent and shared at least one officer . From Mar-
chioni, Mullen learned that the Brodie Oaks job was the
last for Respondent in the area and that thereafter Ful-
shear would do the work . In April , after Mullen was al-
ready aware that Respondent was no longer utilizing any
employees, he learned from the Dodge reports that Re-
spondent had jointly been awarded a job with Fulshear
under the name Pence/Fulshear . These factors clearly do
not legally establish that Respondent was in fact operat-
ing an alter ego or double -breasted operation in deroga-
tion of the Union 's contract. However, they clearly are
indicative of such an operation and in the absence of any
contradictory evidence from Respondent they provide
the Union with a reasonable basis for its belief expressed
in its letter to Respondent that Respondent was violating
the collective-bargaining agreement . Accordingly, I con-
clude that the Union has adequately demonstrated that
the information requested was relevant and essential to
the performance of its obligation as the collective-bar-
gaining representative of the carpenter employees of Re-
spondent . I further conclude that Respondent , by failing
to produce the requested information , violated Section
8(a)(5) and (1) of the Act as alleged.2
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By failing and refusing to give the Union in writing
the information requested in its letter of 14 May 1985,
Respondent has engaged in, and is engaging in, unfair
2 In reaching this conclusion, I find no merit to the suggested argu-
ment in Respondent 's brief that the request for information was improp-
erly directed to Respondent rather than the AGC , Respondent's repesen-
tative . There was no evidence that the AGC had available to it any of
the information requested by the Union.
325
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated Section
8(a)(5) and (1) of the Act, it is recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the purposes of the Act.
Counsel for the General Counsel in his brief requested
the inclusion in the remedy of a visitatorial clause in
effect allowing the Board to engage in discovery under
the Federal Rules of Civil Procedure in order to monitor
compliance . However, no special circumstances are as-
serted or argued to justify such a clause in the instant
case . The Board has previously indicated such clauses
will not be granted in a pro forma manner . See O. L.
Willis, Inc., 278 NLRB 203 (1986); United Cloth Co., 278
NLRB 583 ( 1986). Compare Hilton Inn North, 279
NLRB 45 (1986). In the absence of any special circum-
stances shown here , no visitatorial clause will be provid-
ed.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
eda
ORDER
The Respondent , Pence Construction Corporation,
Austin, Texas, its officers, agents, successors , and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively with United Broth-
erhood of Carpenters and Joiners of America, Local
Union No . 1266 by refusing to furnish the Union the in-
formation requested in its letter of 14 May 1985.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively with the Union by
furnishing to it in writing the information requested in its
letter of 14 May 1985.
(b) Post at its office and other facilities in Austin,
Texas, copies of the attached notice marked "Appen-
dix."' Copies of the notice , on forms provided by the
Regional Director for Region 23, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
s 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.
• If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
United Brotherhood of Carpenters and Joiners of Amer-
ica, Local Union No. 1266 , by refusing to furnish the
said Union with the information requested in the Union's
letter to us of 14 May 1985:
All carpenters, including carpenter apprentices and
carpenter foremen , excluding office clerical employ-
ees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section
9(b) of the Act.
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, on request, furnish the above Union the in-
formation requested in its letter to us of 14 May 1985
that is relevant and necessary to its role as the exclusive
bargaining representatives of our employees.
PENCE CONSTRUCTION CORPORATION