Sherry & O'Leary, Inc.

National Labor Relations Board - Board Decisions

Jul 13, 1992

307 N.L.R.B. 1264 (N.L.R.B. 1992)

1264
307 NLRB No. 190
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We note that the Union’s business manager’s name is Andrew
Hovanec.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) of the Act by refusing to supply certain information re-
quested by the Union, we note that the information requested is con-
tained in G.C. Exh. 6, which is a September 10, 1990 letter from
the Union to the Respondent. The Respondent’s exceptions allege
generally that the information requested is proprietary and confiden-
tial but the exceptions do not specifically particularize or address
any of the items requested in the letter. To the extent that the re-
quested information pertains to the Respondent’s relationship with
Ryco, we find no merit in the exceptions.
1 All dates are in 1990 unless otherwise indicated.
Sherry and O’Leary, Inc. and United Association of
Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States
and Canada, Local 27, AFL–CIO. Case 6–CA–
23069
July 13, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On January 2, 1992, Administrative Law Judge Hu-
bert E. Lott issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Sherry and O’Leary, Inc.,
Monroeville, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order, except that the attached notice is substituted for
that of the administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to furnish information re-
quested by the Union in its September 10, 1990 letter
to us.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL furnish the information requested in the
Union’s letter to us dated September 10, 1990.
SHERRY AND O’LEARY, INC.
Clifford E. Spungen, Esq., for the General Counsel.
Robert J. Blumling, Esq. (Sable, Makoroff, Sherman &
Gusky), of Pittsburgh, Pennsylvania, for the Respondent.
DECISION
STATEMENT OF THE CASE
HUBERT E. LOTT, Administrative Law Judge. This case
was tried in Pittsburgh, Pennsylvania, on June 5, 1991. The
charge was filed on October 11, 1990, and the complaint was
issued December 28, 1990.1
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Pennsylvania corporation with an of-
fice and place of business in Monroeville, Pennsylvania,
where it is engaged as a contractor in the construction busi-
ness. During the 12-month period ending September 30, the
Respondent, in the course and conduct of its business oper-
ations, purchased and received at its Monroeville, Pennsyl-
vania facility products, goods, and materials valued in excess
of $50,000 directly from points outside the Commonwealth
of Pennsylvania. The Company admits, and I find, that it is
an employer engaging in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. Respondent further ad-
mits, and I find, that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Union (Local 27) is the exclusive bargaining rep-
resentative of the Respondent’s plumbers, pipefitters, and ap-
prentices as described in the collective-bargaining agreement
between the Mechanical Contractors Association of Western
Pennsylvania, Inc. and the Union. The Respondent is a mem-
ber of the Association and a party to the most recent agree-
ment effective from June 1, 1988, to May 31, 1991. The Re-
spondent’s owners are Thomas F. Sherry Jr. and Richard
Bosco.
In August, the Union’s business manager, Andrew
Havanec, received reports from the Respondent’s
employee/members that the Respondent might be performing
contracting work under the name Ryco. At a regularly sched-
uled union meeting in August, employees were questioning
Havanec on whether their tools used in the post office job
were being transferred to Ryco.
1265SHERRY & O’LEARY, INC.
Sometime after the union meeting, one of the Respond-
ent’s employees told Havanec that he received ladders on his
job that were marked Ryco.
After receipt of this information, Havanec began an inves-
tigation into the relationship between the Respondent and
Ryco. He contacted the Alleghany County Health Depart-
ment and was informed that Thomas Sherry Jr. had filed for
plumbing installation permits on behalf of Ryco. The work
to be performed was identical to that performed by the Re-
spondent’s employees. Later in August, he contacted the
Pennsylvania Corporation Bureau. He learned from this in-
quiry that the Ryco corporation was located in western Penn-
sylvania and that its principal officer was Thomas Sherry Jr.
Ryco’s secretary-treasurer was Susan Sherry and its address
was Darrell Drive which turned out to be the address of
Thomas Sherry Sr.
In June 1991, Richard Bosco was listed as chief executive
officer and Thomas Sherry Jr. was vice president of Ryco.
In August, Havanec had occasion to talk to Bosco at a
joint apprenticeship program meeting. Both are trustees of
this program. He asked Bosco about Ryco and was told by
Bosco that he had nothing to do with Ryco.
Havanec next searched through the Dodge Reports, which
is an industry publication subscribed to by the Union. Basi-
cally the reports published the successful bidders on con-
struction projects. He discovered that the reports listed Ryco
as the successful plumbing bidder for a construction project
at the Mt. Ararat Baptist Church. He noted that the address
and telephone number for Ryco was the same as that for the
Respondent. In September, Havanec and Union Business
Agent Robert Fleishel went to the Mt. Ararat jobsite and
talked to Dembrowski, the plumber on the job. Dembrowski
informed them that he was employed by Ryco and Richard
Bosco was his supervisor.
Following his investigation, Havanec contacted his union
attorney, Ernest Orsatti, and explained what he had discov-
ered. Both were concerned that the Respondent might be in
violation of certain contract provisions, namely, article 23
which forbids subcontracting work, article 21 which sets
forth work rules governing the installation of plumbing, and
article 7, the work jurisdiction provision, which lists the type
of work to be performed by union employees. After dis-
cussing the matter, Orsatti drew up a list of questions requir-
ing information relating to Ryco and the Respondent and sent
it in a letter to the Respondent dated September 10. The
Union, to date, had never received any of the information re-
quested from the Respondent.
Ernest Orsatti testified that the questions formulated by
him were designed to elicit information on whether or not
the Respondent and Ryco are a single employer. The ques-
tions relate to the issues of common ownership, common
management, centralized control of labor relations, and inte-
gration of operations.
III. ANALYSIS AND CONCLUSIONS
I find that the Union demonstrated a reasonable basis for
requesting the information from the Respondent. The inves-
tigation conducted by Havanec pointed to possible violations
of the collective-bargaining agreement. The only way the
Union could properly administer the contract and resolve the
questions raised by the investigation was through information
supplied by the Respondent.
The information requested in the September letter is rel-
evant and necessary in resolving a single employer, alter ego
issue and is essential for the proper administration of the
contract. Westmoreland Coal Co., 304 NLRB 528 (1991).
The Respondent argued on the record that the Union never
explained why it needed the information. The Respondent
further argued that the request was merely harassment and
overbroad. In brief, the Respondent contends that all the tes-
timony supporting the Union’s need for the information is
hearsay and should not be considered.
I find that in the Union’s request of September 10 it ade-
quately explained its need for the requested information. Fur-
thermore, in a followup letter to the Respondent dated Sep-
tember 25, it further explained why the information was nec-
essary. The harassment argument is frivolous.
With respect to the hearsay argument, evidence was not
offered to prove that the Respondent violated the contract or
that the Respondent and Ryco are a single employer. The
hearsay evidence was offered to support the Union’s reason-
able belief that information pertaining to the above issues
should be requested from the Respondent in order to resolve
those issues one way or the other. Moreover, although much
of the evidence presented was hearsay, I considered it trust-
worthy and reliable in resolving the issue of whether or not
the Union’s request was reasonable. Furthermore, the reli-
ability of the admitted evidence was corroborated by docu-
mentary evidence which was not hearsay. The Dodge Re-
ports, which is a publication subscribed to by the Union and
received in the normal course of business, clearly shows that
Ryco was the successful bidder for plumbing work normally
done by the Respondent. This report also gave Ryco’s ad-
dress and telephone number which were identical to those of
the Respondent. I also considered the fact that the Respond-
ent called no witnesses. Therefore, none of the hearsay testi-
mony was refuted.
For the above reasons, I considered all the evidence sub-
mitted to support the Union’s reasonable belief that it needed
the requested information from the Respondent to administer
the collective-bargaining agreement. Accordingly, I find that
the Respondent violated Section 8(a)(5) and (1) of the Act
by refusing to furnish the information requested in the
Union’s letter dated September 10.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. United Association of Journeymen and Apprentices of
the Plumbing and Pipefitting Industry of the United States
and Canada, Local 27, AFL–CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(5) and (1) of
the Act by refusing to furnish the information requested by
the Union in its September 10 letter.
4. The requested information is relevant and necessary for
the Union to monitor compliance with the collective-bar-
gaining agreement and to process grievances.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
1266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
REMEDY
Having found that the Respondent engaged in acts and
conduct violative of Section 8(a)(5) and (1) of the Act, I
shall recommend that it be ordered to cease and desist there-
from. As a remedy I shall recommend that the Respondent
furnish the information requested in the Union’s letter to the
Respondent dated September 10, 1990.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Sherry and O’Leary, Inc., Monroeville,
Pennsylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to furnish information requested by the Union
in its September 10, 1990 letter to the Respondent.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Furnish the information requested by the Union in its
September 10, 1990 letter to the Respondent.
(b) Post at its facility in Monroeville, Pennsylvania, copies
of the attached notice marked ‘‘Appendix.’’3 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 6, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.