Quality Building Contractors, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 2004

342 N.L.R.B. 429 (N.L.R.B. 2004)

QUALITY BUILDING CONTRACTORS
342 NLRB No. 38
429
Quality Building Contractors, Inc. and Bricklayers
and Allied Craftworkers, Local No. 1, New
York, B.A.C.I.U., AFL–CIO. Case 29–CA–
25646
June 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
Pursuant to a charge filed by Bricklayers and Allied
Craftworkers, Local No. 1, New York, B.A.C.I.U., AFL–
CIO (the Union), on June 9, 2003, the General Counsel
of the National Labor Relations Board issued a complaint
on September 3, 2003, alleging that the Respondent vio-
lated Section 8(a)(5) and (1) of the National Labor Rela-
tions Act by refusing to provide information requested by
the Union. The Respondent filed an answer admitting in
part and denying in part the allegations in the complaint.
On October 27, 2003, the General Counsel filed a Mo-
tion for Summary Judgment and Motion to Strike Por-
tions of Respondent’s Answer. On October 29, 2003, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response
on November 18, 2003.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The complaint alleges that since on or about April 4,
2003, the Respondent has failed and refused to furnish
the Union with requested information necessary for, and
relevant to, the Union’s performance of its duties as the
exclusive collective-bargaining representative of the unit.
The requested information pertained to a worksite differ-
ent from the site at which the Respondent initially em-
ployed union members pursuant to the parties’ collec-
tive-bargaining agreement signed in 2002. The Respon-
dent denies that it has a duty to provide this information
and denies that the information is necessary and relevant
to the Union’s duties. We disagree. First, for the reasons
set forth below, we find that the Respondent’s obligation
to provide this information is definitively resolved by our
finding on the threshold issue—i.e., that the collective-
bargaining agreement entered into between the Respon-
dent and the Union by its terms, was unambiguously
multisite in scope.1 Second, for the reasons set forth be-

1 Chairman Battista agrees that the requested information is relevant
to a grievance alleging that the contract between the Respondent and
the Union covered multiple sites. However, Chairman Battista does not
pass on the merits of that grievance. In 8(a)(5) “informational” cases,
the issue is whether the requested information is relevant to the proc-
low, we further find that there are no factual issues war-
ranting a hearing in this matter and that the Respondent’s
affirmative defenses are inadequate to defeat the Motion
for Summary Judgment.
The Respondent is a general contractor engaged in the
construction industry in and around New York City. In
September 2002, the Respondent was awarded a contract
to perform work at the Essex House in Manhattan. That
contract required the Respondent to employ union labor.
As a consequence of the Essex House contract, the Re-
spondent executed a collective-bargaining agreement
with the Union on October 4, 2002, which agreement
was effective, by its terms, from July 1, 2000, through
June 30, 2004.2
The 2000–2004 agreement contains several interre-
lated clauses that together establish its scope. The
“Scope of Work” clause, article IV, describes the type of
work covered and includes the pointing, cleaning, and
caulking work at issue in this case. The “Geographical
Jurisdiction” clause, article V, provides that the agree-
ment shall apply to all covered work within the Union’s
jurisdiction, which includes the five counties of New
York City and Nassau and Suffolk counties. The “Union
Recognition” clause, article VI, provides that the Re-
spondent recognizes the Union as the exclusive collec-
tive-bargaining agent for its employees on all present and
future jobsites within the Union’s jurisdiction.
Additionally, the collective-bargaining agreement con-
tains a provision restricting the Respondent’s authority to
subcontract bargaining unit work. The “Other Contracts”
clause, article XX, section 4(b), provides that “[t]he Em-
ployer must not subcontract bargaining unit work unless
the subcontractor receiving the subcontract has an
agreement with the Union.”
In late 2002 or early 2003,3 the Respondent began
working at Park City Estates, in Rego Park, New York,
where the Respondent was performing pointing, clean-
ing, and caulking work (PCC work). During March
2003,4 the Union became aware that the Respondent was
employing individuals to perform PCC work at the Park
City site who were not union members. On March 11,
Michael Barbera, a union representative, called Larry

essing of the grievance, not whether the grievance has merit. See
NLRB v. Acme Industrial Co., 385 U.S. 432, 437–438 (1967).
2 The 2000–2004 collective-bargaining agreement was negotiated by
the International Union and the Building Restoration Contractors Asso-
ciation.
3 The Respondent argues that it began work on the Park City Estates
Project in September 2002, while the General Counsel contends the
Respondent began the work in March 2003. This factual dispute over
the timing of events is not material in light of our conclusion below that
the agreement clearly covers all preexisting projects.
4 All dates refer to 2003, unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 430
Schwartz, Respondent’s owner, and requested that, pur-
suant to the union-security clause in the parties’ collec-
tive-bargaining agreement, the Respondent require em-
ployees performing PCC work at Park City to join the
Union or terminate them. Schwartz did not comply with
this request.
About April 4, the Union’s attorney informed the Re-
spondent by letter that the Union was filing a grievance
because the Respondent was performing PCC work cov-
ered by the collective-bargaining agreement at the Park
City site with employees who were not members of the
Union. In order to process the grievance, the Union re-
quested the following information: (1) the contract for
the Park City project; (2) timesheets for all employees on
the Park City project; and (3) all requests for payment
submitted to the customer/building owner for the Park
City project.
About June 4, the Respondent replied, stating that “the
Agreement between [Respondent] and Park City Estates
was signed prior to our signing an Agreement with PCC
Local Union 1. Therefore, [Respondent disputes] the
necessity for any union employees to be on the job.”
As stated above, the General Counsel contends that the
Respondent’s failure to provide the information violates
Section 8(a)(5) of the Act because the information is
relevant to the Union’s representational duties. Specifi-
cally, the General Counsel asserts that the requested in-
formation is relevant to the Union’s claim that the Re-
spondent breached its obligation under the 2000–2004
collective-bargaining agreement to hire union members
for the Park City job, which job is encompassed by that
agreement’s geographical jurisdiction. The Respondent
contends that it has no duty to provide the information
because its collective-bargaining agreement with the Un-
ion covers only the Essex House project and the informa-
tion requested pertains to Park City, which is not covered
by that agreement.
First, we reject the Respondent’s claim that the parties’
collective-bargaining agreement was restricted to the
Essex House project. By its literal terms, the 2000–2004
agreement clearly covers the Park City job as well. The
agreement provides that its terms shall apply to all point-
ing, cleaning, and caulking work performed within a
seven county area. The Park City Estates Project is lo-
cated within that geographic area.
Notwithstanding the unambiguous language of the
2000–2004 agreement, the Respondent attempts to con-
tradict its clear terms by pointing to extrinsic evidence.
Specifically, the Respondent, citing the Union’s state-
ments in October, November, and December 2002, ar-
gues that the parties intended the agreement to cover
only the Essex House project. The Respondent contends
that Union agents told the Respondent’s representatives,
both before and after they signed the 2000–2004 agree-
ment, that the agreement covered only the Essex House
project and that it established only an 8(f) relationship.
The Respondent further asserts that “[i]t was also under-
stood and represented that the CBA would not apply to
any of [the Respondent’s] then pre-existing, ongoing
projects.”
The Respondent further contends that after it began
performing work on the Park City project, the Union
asked the Respondent to “get off on the right foot” with
the Union and to show its “good faith” in their relation-
ship by hiring some union members on the Park City
project. Again, the Respondent alleges that the Union
told it that the collective-bargaining agreement did not
cover the Park City project. In January 2003, the Re-
spondent hired two union members to work at the Park
City project.
We find that notwithstanding the Respondent’s conten-
tion that, when signing the 2000–2004 agreement and
thereafter, the Union advised the Respondent that the
collective-bargaining agreement was an 8(f) prehire
agreement that would be applicable to the Essex House
job only, the contract by its clear and unambiguous terms
states that it was not so limited.5 In these circumstances,
Board precedent prohibits the use of parol evidence to
vary the unambiguous terms of a collective-bargaining
agreement. See NDK Corp., 278 NLRB 1035 (1986)
(“National labor policy requires that evidence of oral
agreements be unavailing to vary the provisions of a
written collective-bargaining agreement valid on its
face.”). As the Ninth Circuit stated, “Where contractual
provisions are unambiguous, the NLRB need not con-
sider extrinsic evidence. Parol evidence is therefore not
only unnecessary but irrelevant.” NLRB v. Electrical
Workers Local 11, 772 F.2d 571, 575 (9th Cir. 1985).
See also America Piles, Inc., 333 NLRB 1118 (2001)
(where agreement clearly required employer to adopt
master agreement covering multiple locations, parol evi-
dence that employer intended to bind itself only on a
single site is not considered). Accordingly, we conclude

5 The Respondent argues that it had no duty to provide the requested
information because it had only an 8(f) relationship with the Union. An
employer’s duty to provide relevant information exists in the 8(f) con-
text as well as in the 9(a) context, with minor differences not relevant
here. Diversified Bank Installations, 324 NLRB 457, 468 (1997) (“The
statutory duty to provide information ‘is equally applicable during the
term of an 8(f) agreement.’”); Gary’s Electrical Service Co., 326
NLRB 1136, 1136 (1998) (finding that the employer violated Sec.
8(a)(5) by refusing to provide relevant information to an 8(f) union),
enfd. 227 F.3d 646 (6th Cir. 2000). Therefore, the Board need not
resolve whether the parties’ relationship is governed by Sec. 9(a) or
Sec. 8(f).
QUALITY BUILDING CONTRACTORS 431
that, based on the four corners of the document, the
2000–2004 agreement is not limited to one project, but—
by its own terms—covers all existing and future jobs.
Our finding that the Respondent’s agreement with the
Union was not restricted to one project bears on the ques-
tion of the relevancy of the information requested by the
Union. That request—concerning the Park City job—
pertained to work performed by the Respondent within
the geographical scope of the collective-bargaining
agreement. As such, the Union was entitled to the infor-
mation. “When a union seeks information pertaining to
employees within a bargaining unit, the information is
presumptively relevant to the union’s representational
duties, and the General Counsel may establish a violation
for the employer’s failure to furnish it without any fur-
ther showing of relevancy.” Commonwealth Communi-
cations, Inc., 335 NLRB 765, 768 (2001), enf. denied on
other grounds 312 F.3d 465 (D.C. Cir. 2002). Where
information requested relates to matters outside the unit
that might have a bearing on the employment terms and
conditions of the unit employees, the burden is on the
General Counsel to prove relevancy in order to establish
a violation on the basis of the employer’s failure to fur-
nish the requested information. Id., and cases there cited.
Whether or not the presumption applies, we apply a “lib-
eral, discovery-type standard” in determining relevancy.
Id. (citing NLRB v. Acme Industrial Co., 385 U.S. 432,
437 (1967)).
Here the Union requested information relevant to the
grievance it filed. The Union sought the contract for the
Park City job, timesheets for employees working on the
job, and requests from the Respondent to be paid. The
timesheets for employees working on the Park City job
are presumptively relevant. This information pertains
directly to the wages and hours of employees performing
bargaining unit work at the Park City site. Refusal to
provide such information “constitutes in most instances a
per se violation of the duty to bargain in good faith.”
Teleprompter Corp. v. NLRB, 570 F.2d 4, 8 (1st Cir.
1977).
The contract for the Park City job and the Respon-
dent’s requests to be paid for this job are arguably rele-
vant. See, e.g., Pertec Computer, 284 NLRB 810, 822–
823 (1987) (union entitled to subcontract to ascertain
whether employer violated a clause in the parties’ collec-
tive-bargaining agreement prohibiting subcontracts),
decision supplemented 298 NLRB 609 (1990), enfd. in
relevant part 926 F.2d 181 (2d Cir. 1991), cert. denied
502 U.S. 856 (1991).
When making requests for information that is not pre-
sumptively relevant, the Union must state why the in-
formation is relevant. See Associated Ready Mixed Con-
crete, 318 NLRB 318 (1995), enfd. 108 F.3d 1182 (9th
Cir. 1997); Island Creek Coal Co., 292 NLRB 480, 490
(1989), enfd. mem. 899 F.2d 1222 (6th Cir. 1990). In
this case, in its written information request, the Union
stated: “This information is necessary in order to deter-
mine the amount of lost wages and benefits that should
have been paid to [Union] members from the time the
pointing, cleaning and caulking work began to date.”
Thus, the Union articulated why the contract for the Park
City job and the Respondent’s requests to be paid were
relevant under the Board’s liberal standard for relevance.
Commonwealth Communications, supra (where project
fell within contract’s scope, employer required to provide
information regarding that project).
The Respondent has raised several affirmative de-
fenses to the allegation that it unlawfully refused to fur-
nish the requested information. We reject each of these
defenses. First, the Respondent argues that Section 10(b)
bars the complaint. Section 10(b) provides that “no
complaint shall issue based upon any unfair labor prac-
tice occurring more than six months prior to the filing of
the charge with the Board.” The Union learned in Octo-
ber 2002 that the Respondent was arguably violating the
agreement by using nonunion labor. The Union re-
quested the information in a letter dated April 4, which
set forth its grievance. Two months later, on June 4, the
Respondent replied, by letter, stating that the agreement
did not cover the Park City project. The letter did not
address the Union’s request for information. The Union
filed its charge on June 9. The Respondent argues that
the 10(b) period began to run in October 2002, when the
Union learned that the Respondent was using nonunion
labor on the Park City Estates Project. The General
Counsel argues that the 10(b) period began to run from
June 4, the date that the Respondent replied to the Un-
ion’s letter containing its information request. The
Board made clear in Oliver Insulating Co., 309 NLRB
725 (1992), enfd. 995 F.2d 1067 (6th Cir. 1993), that the
10(b) period begins to run when an employer clearly and
unequivocally denies a union’s information request, and
not when the union learns of the underlying breach of
contract that prompted its grievance.6 Therefore, even
assuming, arguendo, that the Respondent’s June 4 letter
constituted an unequivocal refusal to provide the re-
quested information, the Union filed its charge well
within the 10(b) period.

6 See also California Nurses Assn., 326 NLRB 1362, 1368 fn. 10
(1998) (10(b) requirement met where employer filed charge within 6
months of union’s clear and unequivocal denial of its information re-
quest); Commercial Property Services, 304 NLRB 134, 143 (1991)
(Sec. 10(b) satisfied where union filed charge within 6 months from
date of its request and employer’s denial).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 432
We likewise reject the Respondent’s argument that the
Union waived its right to obtain relevant information. A
union can relinquish its statutory right to information
only through a “clear and unmistakable” waiver. New
Jersey Bell Telephone, Co., 289 NLRB 318, 330 (1988),
enfd. mem. 872 F.2d 413 (3d Cir. 1989). The Respon-
dent contends that the Union “clearly and unmistakably”
waived its right to the requested information by refusing
to challenge the Respondent’s use of nonunion labor for
over 6 months. In CEC, Inc., 337 NLRB 516 (2002), the
Board, adopting a judge’s opinion, held that a union did
not waive its right to information about an alleged alter
ego of the respondent even though the union had known
of the alter ego’s existence for several years and had not
filed a grievance. As in CEC, we find that the Union’s
inaction in this case did not amount to a “clear and un-
mistakable” waiver of its right to information.
The Respondent further contends that the Union
waived its right to the requested information by allegedly
making statements in October, November, and December
2002 that the agreement did not apply to the Park City
Estates Project. As discussed above, we find that the
clear unambiguous language of the contract shows that it
was not confined to one location. There is no evidence
that the parties entered into a new or supplemental
agreement, oral or otherwise, that varied the clear and
unambiguous terms of the contract signed by the parties.
Cf. Freezer Queen Foods, 215 NLRB 638 (1974) (hold-
ing that parties can alter contract by subsequent agree-
ment).
The Respondent’s final waiver argument is that the
Union “clearly and unmistakably” waived its information
rights by agreeing with the Respondent to place two Un-
ion members on the Park City Estates Project. The Re-
spondent cites no authority in support of this argument.
We find that the Union’s agreement to place two em-
ployees on the project did not signal a clear and unmis-
takable waiver of the Union’s information rights.
Finally, the Respondent argues that the Union is not
entitled to the requested information because the under-
lying grievance is in aid of an unlawful subject of bar-
gaining. The Respondent notes that Section 8(f) author-
izes a union and an employer to enter into a union-
security agreement that requires employees to join the
union after 7 days, but not earlier. The Respondent ar-
gues that the grievance contradicts Section 8(f) to the
extent that the grievance challenges the Respondent’s
alleged breach of the union-security clause by failing to
terminate nonmembers, some of whom may have been
employed for fewer than 8 days. The Respondent’s ar-
gument is specious. The Union has requested informa-
tion relevant to a colorable grievance. Even though some
nonmembers may have been employed fewer than 8
days, the grievance is not therefore “in aid of” an unlaw-
ful subject of bargaining, nor is the Respondent relieved
of its statutory duty to furnish the information in question
to the Union.
In sum, the requested information is relevant to the
Union’s performance of its statutory duties and the Re-
spondent has failed to assert a successful affirmative de-
fense, even assuming the truth of its factual assertions.
There is no material factual dispute, and the General
Counsel is entitled to judgment as a matter of law. Ac-
cordingly, we grant the General Counsel’s Motion for
Summary Judgment.7
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a domestic cor-
poration with an office and place of business in Great
Neck, New York, has been a general contractor engaged
in performing masonry and exterior façade restoration
work at construction jobsites in the New York metropoli-
tan area.
During the 12-month period preceding issuance of the
complaint, the Respondent purchased and received at its
Great Neck facility goods and supplies valued in excess
of $50,000 directly from points outside the State of New
York.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act. We further find that Bricklayers and Al-
lied Craftworkers, Local No. 1, New York, B.A.C.I.U.,
AFL–CIO (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
On April 4, 2003, the Union, by letter, requested the
Respondent to furnish necessary and relevant informa-
tion, and, since about the same date, the Respondent has
failed and refused to do so. We find that the Respon-
dent’s conduct constitutes an unlawful refusal to bargain
in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing to furnish the Union, upon re-
quest in April 2003, the contract between the Respondent
and the owner of the Park City Estates Project, any re-

7 Because we have granted summary judgment we need not pass on
the General Counsel’s motion to strike portions of the Respondent’s
answer. See FPA Medical Management, Inc., 324 NLRB 802, 802 fn.
2 (1997) enf. denied in part on other grounds 157 F.3d 909 (D.C. Cir.
1998); Teledyne Economic Development, 321 NLRB 58, 58 fn. 2
(1996), enfd. 108 F.3d 56 (4th Cir. 1997).
QUALITY BUILDING CONTRACTORS 433
quests for payments made under that contract, and time-
sheets for all employees on the project, the Respondent
engaged in an unfair labor practice affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent engaged in an un-
fair labor practice, we shall order that it cease and desist
and that it take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent unlawfully failed
and refused to furnish relevant and necessary information
to the Union, we shall require the Respondent to furnish
the Union with the contract between the Respondent and
the owner of the Park City Estates Project, any requests
for payments made under that contract, and timesheets
for all employees on the Park City Estates Project.
ORDER
The National Labor Relations Board orders that the
Respondent, Quality Building Contractors, Inc., New
York, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to provide the Union, upon re-
quest in April 2003, the contract between the Respondent
and the owner of the Park City Estates Project, any re-
quests for payments made under that contract, and time-
sheets for all employees on the project; all of which in-
formation is relevant and necessary for the performance
of its duties as the collective-bargaining representative of
the Respondent’s employees.
(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 purposes of the Act.
(a) Furnish the Union with the requested information
set forth above.
(b) Within 14 days after service by the Region, post at
its facility in Rego Park, New York, copies of the at-
tached notice marked “Appendix.”8 Copies of the notice,
on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and

8 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.”
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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current and former employees employed by the
Respondent at any time since April 2003.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the 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 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 any 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 fail or refuse to provide the Union, as it
requested in April 2003, the contract between us and the
owner of the Park City Estates Project, any requests for
payments made under that contract, and timesheets for
all employees on the project; all of which information is
relevant and necessary for the performance of its duties
as the collective-bargaining representative of our em-
ployees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL furnish the Union with the information re-
quested as set forth above.

QUALITY BUILDING CONTRACTORS, INC.