St. Joseph Equipment Corp.

National Labor Relations Board - Board Decisions

Mar 14, 1991

302 N.L.R.B. 47 (N.L.R.B. 1991)

47
302 NLRB No. 6
ST. JOSEPH EQUIPMENT CORP.
1 Root was aware that an employee of St. Joseph was in charge of overall
jobsite coordination of the Fairfield project for Holland Construction.
2 The judge noted, inter alia, that St. Joseph signed the contract with the
Union at the behest of and for the benefit of Holland Construction; that Root
was twice confronted with Holland Construction projects supervised by a St.
Joseph employee; and that the two companies have their principal offices in
the same building and share the same telephone.
3 Art. XI, sec. 9, provides:
The employers, party hereto, shall not attempt to engage in any work cov-
ered by the Agreement in any area in or outside of the geographic juris-
diction of the Union party thereto through the use or device of another
business or corporation which such employer controls, or thru [sic] the
use or device of the joint venture with another employer or contractor
without first consulting with the Brotherhood for the purpose of establish-
ing to the Brotherhood’s satisfaction that the use of such device is not
for the purpose of taking advantage of lower wages or conditions than
are in effect, and if the Brotherhood is not so satisfied, the Union party
has the option of cancelling the Agreement.
St. Joseph Equipment Corporation and Local Union
No. 321, International Brotherhood of Painters
and Allied Trades, AFL–CIO. Case 7–CA–
29666
March 14, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On May 21, 1990, Administrative Law Judge
Claude R. Wolfe issued the attached decision. The Re-
spondent filed exceptions and a supporting 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 brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order. Holland Construction Company was
the general contractor on the Fairfield project in Kala-
mazoo, Michigan. Wil-Par Construction Company
(Wil-Par) was a subcontractor of Holland Construction
on that project. Wil-Par was signatory to a collective-
bargaining agreement with the Union, and employed
members of the Union on the Fairfield project.
In June 1988, Wil-Par advised the Union that it had
insufficient funds to make required union fringe bene-
fit fund contributions. The Union’s business agent,
Ricky Root, unsuccessfully sought from the president
of Holland Construction, Jerry Levi, a written guaran-
tee that it would withhold from payments to Wil-Par
amounts owed the Union by Wil-Par for fringe benefit
fund contributions. Root advised Levi that there were
Wil-Par employees who would refuse to work if the
required payments were not made. Thereafter, counsel
for the Union advised Holland Construction that con-
struction liens would be placed on the Fairfield project
if the required fringe benefit fund contributions owed
by Wil-Par were not made. Holland Construction was
subject to substantial financial penalty if the project
was not timely completed.
Levi thereafter contacted Root in an effort to resolve
the matter. Levi suggested the execution of a collec-
tive-bargaining agreement, and promised to issue a
check for the amount owed the fringe benefit funds by
Wil-Par. Levi told Root that St. Joseph Equipment
Corporation (St. Joseph), the Respondent, was the ap-
propriate party with whom to enter into the contract.1
Levi persuaded Marie Holland, the president of St. Jo-
seph, to sign a contract with the Union. On June 21,
1988, Marie Holland, on behalf of St. Joseph Equip-
ment Corporation, and Root signed a proposed ten-
tative collective-bargaining agreement effective June 1,
1988, through May 31, 1990.
In October 1988, Holland Construction issued a joint
check to Wil-Par and the Union’s attorneys covering
the amounts owed by Wil-Par to the Union’s fringe
benefit funds. The Fairfield job was completed in late
1988. On May 17, 1989, Marie Holland signed the
printed version of the tentative collective-bargaining
agreement she had earlier signed.
In June 1989, Root visited a Holland Construction
project in Battle Creek, Michigan, and learned that
there was a nonunion painting subcontractor on the
job. Root also observed that a St. Joseph employee
was supervising the project for Holland Construction.
Root thereafter telephoned Levi and indicated that non-
union subcontracting violated their agreement. Levi re-
sponded that Holland Construction did not have a con-
tract with the Union and St. Joseph, which did, was
not party to the subcontracting. Root stated that he felt
that St. Joseph and Holland were interrelated, and indi-
cated that he would send Levi a questionnaire to deter-
mine if the two were separate entities. Thereafter, Root
sent to Holland Construction and the Respondent a list
of 77 questions, with an accompanying letter indicating
his belief that Holland Construction may be ‘‘governed
by the recognition and work preservation provisions of
the collective bargaining agreement.’’ The Respondent
and Holland Construction declined to furnish the re-
quested information.
The judge found that the Union had a reasonable
basis for believing that St. Joseph and Holland Con-
struction were related businesses2 and that the Union’s
contract with St. Joseph might, therefore, be applicable
to Holland Construction. The judge found further that
the requested information was relevant to the Union’s
determination whether Holland Construction was vio-
lating article XI, section 9 of the collective-bargaining
agreement, which the Union contends prohibits non-
union subcontracting.3 The judge additionally con-
strued article XI, section 9, as a lawful limitation on
subcontracting under the construction industry proviso
of Section 8(e) of the Act. Accordingly, the judge
found that the Respondent violated Section 8(a)(5) of
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The Board deems information requested by a union concerning terms and
conditions of employment of employees actually represented by the union to
be presumptively relevant. Masonic Hall, 261 NLRB 436, 437 (1982), enfd.
699 F.2d 626 (2d Cir. 1983). However, information requested by a union of
an employer concerning the existence of a double-breasted or alter ego oper-
ation, as in this case, is not presumptively relevant. Pence Construction Corp.,
281 NLRB 322, 324 (1986). The union requesting such information bears the
burden of demonstrating a reasonable belief that the two companies are a sin-
gle employer or alter ego, and that the information is relevant to the union’s
administration or enforcement of its collective-bargaining agreement or would
be of use to the union in carrying out its statutory duties and responsibilities.
Electrical Energy Services, 288 NLRB 925, 931–932 (1988); Barnard Engi-
neering Co., 282 NLRB 617, 619 (1987).
5 Sec. 8(e) provides in pertinent part:
It shall be an unfair labor practice for any labor organization and any em-
ployer to enter into a contract or agreement, express or implied, whereby
such employer ceases or refrains or agrees to cease or refrain from han-
dling, using, selling, transporting or otherwise dealing in any of the prod-
ucts of any other employer, or to cease doing business with any other
person, and any contract entered into heretofore or hereafter containing
such an agreement shall be to such extent unenforceable and void: Pro-
vided, That nothing in this subsection (e) shall apply to an agreement be-
tween a labor organization and an employer in the construction industry
relating to the contracting or subcontracting of work to be done at the
site of the construction, alteration, painting, or repair of a building, struc-
ture, or other work . . . .
the Act by refusing to furnish the Union with the re-
quested information. We disagree.
The Union contends that the requested alter ego in-
formation is relevant to its determination whether Hol-
land Construction has violated article XI, section 9 of
the collective-bargaining agreement.4 Assuming that
section 9 can be read as a limitation on subcontracting,
we find, as set forth below, that contractual provision
to be unenforceable under Section 8(e) of the Act. As
the Board would not enforce that provision of the con-
tract and hence would not find any violation of the
agreement based on that provision, the relevance of the
requested information cannot be established based on
an alleged violation of section 9.
Section 8(e) of the Act makes it an unfair labor
practice for an employer and a labor organization to
enter into a contract whereby the employer agrees to
cease doing business with any other person. However,
the construction industry proviso to Section 8(e) ex-
empts any agreement between a labor organization and
an employer in the construction industry relating to the
contracting of work to be done at the construction
site.5
In Connell Construction Co. v. Plumbers Local 100,
421 U.S. 616 (1975), the Supreme Court held that the
construction industry proviso to Section 8(e) only
privileges subcontracting restrictions sought or nego-
tiated in the context of a collective-bargaining relation-
ship. The Court found the subcontracting provision in
Connell to run afoul of that rule as the union sought
an agreement from the employer dealing solely with
subcontracting, and specifically disavowed any intent
to seek recognition by the employer. In addition, the
union had no past relationship with the employer and
did not seek to establish one.
Accordingly, section 9 is only valid in this case if
it can be shown that it was arrived at within a collec-
tive-bargaining framework. A collective-bargaining re-
lationship sufficient to satisfy the rule set forth in
Connell may be established by a prehire agreement ex-
ecuted in accordance with Section 8(f) of the Act. Los
Angeles Building Trades Council (Schriver, Inc.), 239
NLRB 264, 269–270 (1978), enfd. 635 F.2d 859 (D.C.
Cir. 1980), cert. denied 451 U.S. 976 (1981). Although
the Respondent and the Union here signed an 8(f) col-
lective-bargaining agreement, we cannot conclude
based on the particular facts of this case that the agree-
ment was reached in the context of a collective-bar-
gaining relationship.
It is undisputed that the Union did not have a collec-
tive-bargaining relationship with the Respondent or
Holland Construction prior to the Fairfield project. It
is also clear that the Union approached Holland Con-
struction solely in an effort to guarantee fringe benefit
fund payments owing by Wil-Par on the Fairfield
project. Indeed, according to the testimony credited by
the judge, Levi suggested the execution of the agree-
ment ‘‘to get the matter resolved,’’ i.e., to guarantee
the fringe benefit payments to avoid disruption of the
project and possible exposure of Holland Construction
to substantial penalties. There is insufficient evidence
in the record to indicate that Root sought in addition
to such a guarantee a complete bargaining relationship
on behalf of Respondent’s employees because, as Root
testified, he was aware at that time that neither the Re-
spondent nor Holland Construction had ever employed
employees represented by the Union or engaged in
work within the jurisdiction of the Union. Root further
testified that he did not receive a commitment from
Jerry Levi or Marie Holland that either the Respondent
or Holland Construction would employ employees rep-
resented by the Union or engage in painting in the fu-
ture, and that in fact neither had done so subsequent
to the Fairfield project. Additionally, on June 14, 1989,
the Respondent declined to pay the Union an annual
apprenticeship fund fee on the ground that it did not
at that time employ painters and did not intend to hire
any in the future.
In view of the clearly limited purpose that gave rise
to the agreement, as well as the fact that the Respond-
ent or Holland Construction did not employ employees
represented by the Union either before or after the
Fairfield project, and the Respondent made clear to the
Union on at least one occasion its intent not to do so,
we cannot conclude that the subcontracting restriction
in this case was reached in the context of a collective-
bargaining relationship. Compare Iron Workers Pacific
Northwest Council (Hoffman Construction), 292 NLRB
562, 578 (1989) (no collective-bargaining relationship
for 8(e) purposes where prior agreement had expired
and where the employer no longer employed unit em-
ployees and disavowed any intent to hire unit employ-
ees in the future); Sheet Metal Workers Local 17
49ST. JOSEPH EQUIPMENT CORP.
(Planair Sheet), 241 NLRB 880 (1979) (collective-bar-
gaining relationship found under Sec. 8(e) where col-
lective-bargaining agreement in effect between em-
ployer and union and parties stipulated that employer
at all material times employed members of the union
signatory to the contract and intended to do so in the
foreseeable future). We therefore find that article XI,
section 9, is not privileged under the construction in-
dustry proviso of Section 8(e) of the Act.
The Union has not set forth any alternative basis for
establishing the relevance of the requested information
other than an alleged violation of article XI, section 9,
which provision we have found to be unenforceable.
Thus, we cannot conclude that the Union has ‘‘estab-
lished a reasonable and probable relevance of the re-
quested information by showing that the information
could make tenable its contentions as to violations of
the contract by [r]espondent.’’ Doubarn Sheet Metal,
243 NLRB 821, 823–824 (1979). Compare National
Cleaning Co., 265 NLRB 1352, 1354 (1982), enfd.
723 F.2d 746 (9th Cir. 1984) (information sought by
union regarding single employer status found to be rel-
evant because it would ‘‘lend some credence’’ to union
contention that respondent had violated the sub-
contracting provision of the contract). Accordingly, we
find that the Union has not met its burden of dem-
onstrating the relevance of the requested information to
its administration or enforcement of the collective-bar-
gaining agreement. ‘‘[W]here the information is plainly
irrelevant to any dispute there is no duty to provide
it.’’ Ohio Power Co., 216 NLRB 987, 991 (1975),
enfd. 531 F.2d 1381 (6th Cir. 1976). We therefore find
that the Respondent did not violate Section 8(a)(5) and
(1) of the Act by refusing to furnish the Union with
the requested information.
ORDER
The complaint is dismissed.
CHAIRMAN STEPHENS, concurring in the result.
Although I agree with the result my colleagues reach
in this case, I do not agree with their rationale, specifi-
cally their implicit premise that a general statutory bar-
gaining obligation existed between the parties in the
circumstances of this case.
The significant facts are straightforward. The Re-
spondent is a general contractor in the construction in-
dustry. It signed a ‘‘collective bargaining agreement’’
for purposes totally unrelated to a collective-bargaining
relationship with the Union. The Respondent did not at
the time employ employees representable by the
Union, did not subsequently, and has never intended to
do so at any relevant time. In these circumstances, the
Respondent, even accounting for its status as an em-
ployer under Section 8(f), did not have a statutory duty
to bargain. See, e.g., Searls Refrigeration Co., 297
NLRB 133, 135 (1989); Stack Electric, 290 NLRB
575, 576 (1988); Garman Construction Co., 287
NLRB 88, 89 (1987). Accordingly, I would dismiss the
complaint because the Union—at no relevant time rep-
resenting or seeking to represent any employees of the
Respondent—had no statutory right to request any in-
formation, because the Respondent had no statutory
obligation under Section 8(a)(5) and Section 8(d).
Dwight R. Kirksey, Esq., for the General Counsel.
Robert J. Chovanec, Esq., for the Respondent.
Ricky L. Root, for the Charging Party.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This pro-
ceeding was litigated before me at Grand Rapids, Michigan,
on January 25, 1990, pursuant to charges filed and served on
September 11, 1989, and complaint issued on October 31,
1989, alleging St. Joseph Equipment Corporation (Respond-
ent or St. Joseph) violated Section 8(a)(5) and (1) of the Act
by failing and refusing to furnish Local Union No. 312,
International Brotherhood of Painters and Allied Trades (the
Union) with requested information.
On the entire record, and after considering the comparative
testimonial demeanor of the witnesses as well as the able
posttrial briefs of the parties, I make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Holland Construction Company (Holland), with main of-
fices in St. Joseph, Michigan, is engaged in the business of
general contracting of commercial building construction.
During the calendar year 1989, Holland purchased and re-
ceived goods valued at more than $50,000 from firms located
outside the State of Michigan which were delivered to Hol-
land projects in Michigan. Holland is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
St. Joseph has its principal office in St. Joseph, Michigan,
and is engaged in the business of general contracting of com-
mercial building construction. During the fiscal year ending
December 31, 1988, a representative period, St. Joseph had
gross revenues from its business operations in excess of
$500,000. During the same period, St. Joseph performed
services valued in excess of $50,000 for Holland. St. Joseph
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
Wil-Par Construction, a drywall finisher, had a collective-
bargaining agreement with the Union and employed union
members to perform work on a construction project in Kala-
mazoo, Michigan, in 1988. Wil-Par was performing that
work as a subcontractor for Holland who was the general
contractor on the job but subcontracted all the work out to
50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other employers and acted as the construction manager on
the site. John Hongers, an employee of St. Joseph, was in
charge of overall jobsite coordination for Holland.
Wil-Par failed to comply with the Union’s contract re-
quirements respecting timing of paydays, payment of wages,
and fringe benefit payments. Unable to resolve these prob-
lems with Wil-Par, Ricky Root, the Union’s business rep-
resentative, went to the Holland jobsite trailer with the owner
of Wil-Par and advised Bongers, who said he was represent-
ing Holland on the site, of the Union’s problems, with Wil-
Par’s failure to pay its employees’ wages on schedule, and
further advised Wil-Par employees were refusing to work un-
less they had a payday. Bongers immediately called the Hol-
land offices and thereafter advised a check was being deliv-
ered from that office to Wil-Par who would then pay its
workers. The employees were paid and thus the issue re-
solved. The problem of the failure to pay fringe benefits was
brought to the attention of Wil-Par’s owner on or about June
14, 1988. The Wil-Par owner responded he had no money.
Root then called Jerry Levi, the president of Holland, advised
him of the fringe benefit problem, and the further fact there
were employees of Wil-Par who would refuse to work if
these benefit fund payments were not forthcoming. Root re-
quested Levi to give a written guarantee Levi would with-
hold the benefit funds from payments to Wil-Par. Levi re-
fused. Root then referred the matter to the Union’s benefit
fund attorney who directed a June 14, 1988 letter to Holland,
Wil-Par, and the customer for whom the construction was
being performed. The letter advised, in substance, that unless
the fringe benefit contributions were paid construction liens
would be placed on the project. I do not credit Levi’s testi-
mony that Root asked Maria Holland to sign a union contract
when he called Levi on or about June 14, or that during that
conversation Levi told Root he would go ask Holland to se-
cure a signature to such a contract on behalf of St. Joseph.
Root was a more believable witness than Levi in terms of
comparative demeanor and certainty and gave more consist-
ent and probable testimony. Moreover, Levi stressed that he
went promptly to Maria Holland to secure her consent to a
contract after his discussion with Root, yet she signed no
contract until June 21. I believe its more likely that Levi has
combined two conversations with Root into one. He does not
deny talking to Root on June 20, and I credit Root’s account
of that call. Thus, I find Levi called Root on June 20, after
receiving the June 14 letter from the fund attorney, asked
what it would take to get the matter resolved, suggested the
execution of a collective-bargaining agreement, and promised
to issue a check for the amounts due the fringe benefit fund.
Root called him back the same day, agreed to contract with
him, and agreed to meet with Levi and Maria Holland the
following day after Levi explained that Holland signs con-
tracts on behalf of St. Joseph, and had signed the contracts
with other labor organizations. Levi’s claims that Holland
would not sign a contract because it had no employees on
the site but he thought St. Joseph might because it had em-
ployees ignores the fact that St. Joseph, like Holland, em-
ployed no one in the trades represented by the Union, and
had no plan to. Why it would be more appropriate for one
employer with no union employees or intention of ever hav-
ing any to sign rather than another in the same situation is
not satisfactorily explained and impresses me as an excuse
rather than ‘‘a’’ or ‘‘the’’ reason. In any event, Levi per-
suaded Holland to sign the Union’s contract. According to
Levi, he told Holland he needed someone to sign the Union’s
agreement in order to get the Union to continue to supply
employees to the jobsite. He further stated that when he said
this, she asked why should she sign if it was not going to
be used for anything, and she added she did not want to em-
ploy painters. Levi continues that he told her Root wanted
a body he recognizes to sign the agreement even if it was
just a signature on a piece of paper. Holland merely testified
regarding these matters that Levi’s testimony regarding what
he told her is correct. What he told her is not dispositive of
what Root wanted; however, Levi may have chosen to de-
scribe Root’s wants. It seems clear that the immediate pur-
pose of Root’s request was a contract with the general con-
tractor in order to secure compliance with its agreement with
Wil-Par. Root was looking for a guarantor, not just a name
on a piece of paper. Levi well knew that, and Root accepted
Levi’s representation that St. Joseph was the appropriate
party with whom to contract.
Holland’s question to Levi regarding the purpose of sign-
ing something that would not be used for anything suggests
that she was not convinced signing the agreement meant
nothing to Holland in terms of liability, and Root said noth-
ing to her on June 21 when they met to in any way imply
she was not bound by what she signed. Holland’s testimony
that she signed because Levi told her ‘‘he had this job that
was going in Kalamazoo. It had to be done on time and there
was a big penalty clause and he had to have a union contrac-
tor’’ indicates an unusual amount of concern for one inde-
pendent contractor to have for another, suggests the relation-
ship between the two companies is not as remote and busi-
nesslike as Respondent would have it, and indicates they
were far more closely intertwined. According to Holland, a
rather vague witness who gave little testimony, she told Root
she was signing only for the ‘‘Fairfield job.’’ This is where
Wil-Par was working. According to Root, he told her Levi
and he had gone through the entire agreement immediately
prior to his meeting with her and were in agreement the con-
tract would be signed. Holland does not deny Root so said.
Levi denies going through the agreement before Holland
signed it. I credit Root, noting he was the more believable
witness and that it is very unlikely Levi did not examine the
contract before it was signed. Accordingly, I find Levi and
Root examined the agreement together on June 21, 1988, be-
fore Holland signed it. What she signed was a proposed, ten-
tative agreement covering the period June 1, 1988, through
May 31, 1990.
The Fairfield job at Kalamazoo was completed in 1988.
Prior to that time, Holland, on October 28, 1988, issued a
joint check to Wil-Par and the Union’s fund attorneys cover-
ing the amounts owed by Wil-Par to the Union’s fringe bene-
fit fund. Notwithstanding Respondent’s claim that its agree-
ment was limited to the Fairfield job, Holland again signed
the contract after it was printed in its entirety and forwarded
to Levi for signature on May 17, 1989, long after the Fair-
field job was done. I must conclude the agreement, even if
limited when originally signed, no longer was so limited
after Holland signed it after May 17, 1989. This agreement
covers journeymen painters and indentured apprentices,
among others.
Root’s request that Respondent pay $l50 yearly fee to the
painter’s apprenticeship fund was rejected by a letter from
51ST. JOSEPH EQUIPMENT CORP.
1 I credit Root’s version of the call and specifically do not credit Levi that
he did not complete the questionnaire because Root represented it was only
a few questions rather than the many it actually contained.
2 Appendix A is omitted from publication.
Holland on June 14, 1989, on the ground St. Joseph had no
painters and did not intend to hire any.
In June 1989, Root visited a construction site in Battle
Creek, Michigan, and found Dave Hogan, a St. Joseph em-
ployee, supervising the job for Holland. St. Joseph had em-
ployees on the site, but had no separate work trailer. Hogan
was in the Holland trailer. Root found from the subcontrac-
tor’s list furnished by Hogan that there was a nonunion
painting contractor on the job. Thereafter, on or about June
21, 1989, Root called Levi and said he thought the sub-
contracting to a nonunion contractor violated their agreement.
Levi protested that Holland had no agreement with the
Union, and St. Joseph, which did, did not subcontract the
work in question. Root advised he believed there was a close
interrelationship between St. Joseph and Holland, and asked
Levi if he would mind Root sending a questionnaire to help
determine if the two were separate entities. Levi told him to
send it.1 Root sent the following letter to St. Joseph and Hol-
land on June 21, 1989, with an attached list of 77 questions:2
ATTENTION: JERRY LEVI
MARIE HOLLAND
Based upon a review by Local #312, it appears that
there may be a close inte-relationship [sic] between St.
Joseph Equipment Corp. and Holland Construction. St
Joseph Equipment Corp. is a party to a collective bar-
gaining agreement with Local 312. Depending upon the
relationship between St. Joseph Equipment and Holland
Construction, Holland Construction may in fact be gov-
erned by the recognition and work preservation provi-
sions of the collective bargaining agreement. In many
instances, commonly controlled or alter-ego corporation
may have fringe fund liabilities pursuant to the provi-
sions of ERISA.
Enclosed please find a Questionaire seeking informa-
tion respective operations of St. Joseph Equipment and
Holland Construction and the relationship between
those two entities. This information is essential for
Local 312 to administer its collective bargaining agree-
ment.
Please respond to the enclosed Questionaire by June
7, 1989. Your prompt attention to this matter will be
appreciated.
Holland did not reply. St. Joseph replied by letter of June
25, 1989, as follows:
Dear Rick:
Enclosed is the information you just sent to St. Jo-
seph Equipment Corporation. You sent it ATTN: Jerry
Levi; he does not work for me. I am President and own
St. Joseph Equipment Corporation. You must be under
the impression that we deliver mail.
I am not now employing any of your employees nor
do I ever intend to in the future so I am returning this
information you requested.
Yours very truly,
ST. JOSEPH EQUIPMENT CORP.
/s/ Marie Holland
Marie Holland, President
Root then sent the following letter to Marie Holland on July
11, 1989:
Enclosed is the same Questionnaire which you re-
turned without regard to its content. The letter was sent
to Jerry Levi and Marie Holland. Why did I do this?
Any business that I’ve had with St. Joseph Equipment
Corp. or Holland Construction I’ve had to deal with
Jerry Levi, in fact the only time I’ve spoke to you
Marie Holland was the event that Jerry had agreed to
enter the collective-bargaining agreement with Local
No. 312 and Jerry lead you into the office for the sign-
ing of the agreement.
And as I discussed with Jerry and would also be glad
to discuss with you if when I call to discuss matters
concerning St. Joseph Equipment you would take my
call instead of Jerry. I believe there is a contract viola-
tion of sub-contracting and I must investigate as such.
Again, based upon a review by Local No. 312, it ap-
pears that there may be a close relationship between St.
Joseph Equipment Corp. and Holland Construction. St.
Joseph Equipment Corp. is a party to a collective bar-
gaining agreement with Local No. 312. Depending
upon the relationship between St. Joseph Equipment
and Holland Construction, Holland may in fact be gov-
erned by the recognition and work preservation provi-
sions of the collective bargaining agreement. In many
instances, commonly controlled or alter ego corporation
may have fringe fund liabilities pursuant to the provi-
sions of ERISA.
Please complete the enclosed Questionnaire as this
information is essential for Local No. 312 to administer
its collective bargaining agreement with St. Joseph
Equipment.
There was no response.
Discussion
The collective-bargaining agreement between St. Joseph
and the Union is in full force and effect, was re-executed
after the Fairfield job ended, and therefore is not limited to
that job. Respondent’s suggestion that the 1989 execution
was in some way a limitation of the agreement to a nonexist-
ent worksite is imaginative but untenable. More serious is the
argument that article XI, section 9 of the agreement violates
Section 8(e) of the Act. Section 8(e) provides in relevant
part:
It shall be an unfair labor practice for any labor or-
ganization and any employer to enter into any contract
or agreement . . . whereby such employer ceases or re-
frains or agrees to cease or refrain from handling,
using, selling, transporting or otherwise dealing in any
of the products of any other employer, or to cease
doing business with any other person, and any contract
or agreement entered into heretofore or hereafter con-
taining such an agreement shall be to such extent unen-
forceable and void: Provided, that nothing in this sub-
section (e) shall apply to any agreement between a
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 George Koch & Sons, Inc., 295 NLRB 695 (1989). See, e.g., Stephen
Oderwald, Inc., 284 NLRB 277 (1987); St. Marys Foundry Co., 284 NLRB
221 (1987), and cases cited in those decisions.
4 Walter N. Yoder & Sons, 270 NLRB 652 fn. 5 (1984), and cases cited
there.
5 Barnard Engineering Co., 282 NLRB 617, 619 (1987).
6 NLRB v. Acme Industrial Co., supra.
labor organization and an employer in the construction
industry relating to the contracting or subcontracting of
work to be done at the site of the construction, alter-
ation, painting, or repair of a building, structure, or
other work.
Article XI, section 9 of the agreement provides:
The employers, party hereto, shall not attempt to en-
gage in any work covered by the Agreement in any
area in or outside of the geographic jurisdiction of the
Union party thereto through the use or device of an-
other business or corporation which such employer con-
trols, or thru the use of device of the joint venture with
another employer or contractor without first consulting
with the Brotherhood for the purpose of establishing to
the Brotherhood’s satisfaction that the use of such de-
vice is not for the purpose of taking advantage of lower
wages or conditions than are in effect, and if the Broth-
erhood is not so satisfied, the Union party has the op-
tion of cancelling the Agreement.
The General Counsel’s observation that the object of this
provision should properly be construed as the prevention of
evasion of contracted provisions concerning benefits con-
ferred on employees by the questionable use of a joint ven-
ture or other employer controlled by the contracting em-
ployer is well taken, as is the observation that the questioned
article XI, section 9, if it be construed as a limitation of sub-
contracting bargaining unit jobsite work, falls within the con-
struction industry proviso of Section 8(e) of the Act. Woelke
& Romero Framing, Inc., 456 U.S. 645 (1982), is indeed dis-
positive of this latter issue, and I conclude article XI, section
9 of the contract does not run afoul of Section 8(e) of the
Act.
It is well settled that an employer must furnish a union,
at its request, necessary and relevant information to enable
a union to fulfill its obligation as a bargaining representative,
and the information requested need only be shown to be
probably or potentially relevant. NLRB v. Acme Industrial
Co., 385 U.S. 432, 435, 437 (1967). Here, the information
sought by the Union is not presumptively relevant as is infor-
mation regarding wages, hours, and working conditions of
employees in the bargaining unit. St. Joseph’s employees
were covered by the contract of which there was none.3 If,
however, the Union can show that it had a reasonable belief
based on objective facts that St. Joseph and Holland are a
single employer or alter egos and the information it requests
is relevant, it must be furnished on request so that the Union
may be able to more clearly determine if that belief be true
and whether it is reasonable to conclude its collective-bar-
gaining agreement, notably article XI, section 9, and the
fringe fund liabilities Root refers to in his letters, may not
have been complied with.4
This case boils down to two questions: Is the Union enti-
tled to any information from the Respondent? If so, what in-
formation sought, if any, must be produced? The answer to
the first question depends on whether the Union has a rea-
sonable basis for believing St. Joseph and Holland are inter-
related businesses.5 I conclude it has. St. Joseph maintains no
separate work trailer on Holland job. Root was confronted at
two jobsites by St. Joseph employees officed in a Holland
trailer and directing projects for Holland. The two firms have
their principal offices in the same building and share the
same telephone. Root sought an agreement from Holland, not
St. Joseph, and entered into the agreement with St. Joseph
because Levi told Root that, although Holland never exe-
cuted labor agreements, St. Joseph did. Levi, the president of
Holland, persuaded Holland, the owner of St. Joseph, to exe-
cute the contract with the Union in June 1988 in order to as-
sure that union workers would continue to work for a Hol-
land subcontractor. In short, St. Joseph acted at Holland’s be-
hest and for Holland’s benefit when Holland signed the con-
tract in June 1988. Root had no reason to believe the rela-
tionship between the two companies was any different when
Holland again signed an ageement in 1989. The presence of
Hogan, a St. Joseph employee, in the Holland trailer on the
Battle Creek job as the job overseer for Holland was suffi-
cient reason to believe the relationship had not changed.
With the foregoing evidence in hand, Root had a objective
factual basis for his belief there was a special business rela-
tionship between St. Joseph and Holland which might well
require Root to consider whether the contract with St. Joseph
was applicable to and being violated by Holland. It was
therefore appropriate for Root to request information from St.
Joseph in order to resolve exactly what this relationship is
and thus enable the Union to properly administer its respon-
sibilities as a collective-bargaining agent. In determining
what information must be supplied, a broad discovery type
standard is appropriate.6 The request tendered by Root to St.
Joseph has 77 separate divisions, each with two or more re-
quested items therein. The requested information is relevant
to the Union’s performance of its role as collective-bargain-
ing representative of employees covered by the collective-
bargaining agreement with St. Joseph. Respondent’s failure
to provide any of the information requested violated Section
8(a)(5) and (1) of the Act. George Koch, supra. It may be
that some of the information requested is not within the pos-
session and control of St. Joseph. The Board, cognizant of
this possibility, held in George Koch that ‘‘any disputes re-
garding the Respondent’s obligations under the decision can
be addressed in the compliance stage of this proceeding,’’
and I conclude that observation in a proceeding where 89
items were requested is also applicable to the instant case.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
53ST. JOSEPH EQUIPMENT CORP.
3. By refusing to furnish the Union with the requested in-
formation relevant to administration of the collective-bargain-
ing agreement, the Respondent failed to bargain collectively
and in good faith with the Union and has thereby engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the Act.
[Recommended Order omitted from publication.]