Steel Products Erection Corporation

National Labor Relations Board - Administrative Judge Opinions

Dec 21, 2007

04-CA-035222 (N.L.R.B. Dec. 21, 2007)

JD–81–07
Scranton, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
STEEL PRODUCTS ERECTION
CORPORATION
and Case 4–CA–35222
INTERNATIONAL ASSOCIATION OF
BRIDGE, STRUCTURAL, ORNAMENTAL
AND REINFORCING IRON WORKERS,
LOCAL 489, AFL–CIO
Donna D. Brown, Esq., for the General Counsel.
Stephen C. Richman, Esq., of Philadelphia, PA,
for the Charging Party.
Jeffrey M. Raider, Esq., of Scranton, PA, for
the Respondent.
DECISION
Statement of the Case
RICHARD A. SCULLY, Administrative Law Judge. Upon a charge filed by International
Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 489, AFL–
CIO (the Union), on March 7, 2007, the Regional Director for Region 4, National Labor Relations
Board (the Board), issued a complaint on June 6, alleging that Steel Products Erection
Corporation (Respondent) had violated Section 8(a)(5) and (1) of the National Labor Relations
Act (the Act). The Respondent filed a timely answer denying that it had committed any violation
of the Act.
A hearing was held in Philadelphia, Pennsylvania, on October 2, 2007, at which all
parties were given a full opportunity to examine and cross-examine witnesses and to present
other evidence and argument. Briefs submitted on behalf of the parties have been given due
consideration. Upon the entire record and my observation of the demeanor of the witnesses,
I make the following
Findings of Fact
I. Jurisdiction
Respondent, Steel Products Erection Corporation (SPEC), is a Pennsylvania
corporation, with a facility in Scranton, Pennsylvania, engaged in the erection of iron and steel
products. During the year preceding June 28, 2007, Respondent in the conduct of its business
operations provided services valued in excess of $50,000 to Standard Iron Works (SIW), an
enterprise within the Commonwealth of Pennsylvania. At all times material, SIW has been a
Pennsylvania corporation engaged in the production of steel products at a facility in Scranton,
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Pennsylvania. During the year preceding June 28, 2007, SIW in the conduct of its business
operations purchased and received goods and services valued in excess of $50,000 directly
from points outside the Commonwealth of Pennsylvania. Respondent admits and I find that it
and SIW are employers engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the
Act.
II. Alleged Unfair Labor Practices
SIW had engaged in the fabrication and erection of structural steel and miscellaneous
iron products and had a collective bargaining agreement with the Union until 1988 when it made
the decision to focus on fabrication and cease steel erection. At that time SPEC was created to
do erection work. Since it formation, SPEC has recognized the Union as the exclusive
collective bargaining representative of its employees in a unit comprised of “all employees
engaged in field fabrication and/or erection of ferrous and non-ferrous material.” Their most
recent collective bargaining agreement runs from July 1, 2006 to June 30, 2009. Kevin McHugh
holds the position of business manager and financial secretary/treasurer of the Union. McHugh
sent a letter, dated December 12, 2006, to Mark Dennebaum, Respondent’s president, in which
he requested certain information. The letter states that it is McHugh’s understanding that SPEC
is affiliated or otherwise related to SIW which does not have a collective bargaining agreement
with the Union. It also states that “the recent influx of non-union contractors and double-
breasted companies may have a significant impact on unionized construction and related
industries and could hamper our efforts to police compliance with existing collective bargaining
agreements.” The information request consists of 78 questions concerning the operations of
SPEC and SIW and transactions between the two entities.
Dennebaum responded in an undated letter in which he asserted that the information
request is overly broad, unreasonably intrusive, and sought information which is confidential or
is not relevant to the collective bargaining relationship between SPEC and the Union. He also
stated that there is no “unlawful double-breasted” relationship between SPEC and SIW. In
response, McHugh sent a letter, dated January 2, 2007, in which he stated that SPEC had a
contract with the Union pursuant to which it had performed “relatively little work” and that “the
work it has performed has been pursuant to a contract or arrangement with” SIW. The letter
further states:
It is our understanding that Standard Iron Works and Steel Products Erection Corp. have
common ownership. It is the commonality of ownership and operations that we are
seeking to explore by the information that we have requested from you. It is our view
that this information is necessary to explore the relationship between the two companies
and determine whether Steel Products Erection Corp. is complying with the terms of the
collective bargaining agreement.
Dennebaum responded in a letter, dated January 10, 2007, in which he stated that he did not
consider McHugh’s letter an appropriate response to his letter or that the Union was taking “an
appropriate position.”
At the hearing, Respondent introduced a letter, dated January 30, 2007, which
Dennebaum testified he had sent to McHugh.1 In that letter, Dennebaum stated that McHugh

1 Dennebaum identified the January 30 letter as one that he prepared and mailed to
McHugh in the same manner as the other he sent to the Union relating to its information
Continued
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had offered “no basis for your bare, unsubstantiated accusations against SPEC” or his demand
for information concerning the relationship between SPEC and SIW, which he asserted “do
entirely different work.” Dennebaum’s letter further states that since SIW is not in the business
of steel erection and the Union does not have a collective bargaining agreement with it, he is
satisfied that Respondent has no legal duty to comply with the “unfounded and burdensome”
information request, “absent competent, credible evidence . . . of such an unlawful ‘double-
breasted’ relationship.” Other than what is stated in Dennebaum’s two letters, Respondent has
produced no information in response to the Union’s information request.
McHugh testified that at the time he sent his December 12 request for information to the
Respondent he was aware that that the erection work SPEC was performing was being done
pursuant to an arrangement with SIW and that it amounted to only approximately 1,500 man
hours per year. This he said was substantially less than what SIW had done until it “got out of
the erection business and started subbing their steel erection out non-union.” He said that he
believed that SIW and SPEC were the same company; that they had the same ownership; that
they had the same principal officers, according to information contained in SIW’s website; that
they operated at the same location using the same employees; and that they shared the same
equipment and trucks.
Analysis and Conclusions
Pursuant to Section 8(a)(5) of the Act, an employer, upon request, has a duty to provide
a union with relevant information needed to effectively represent employees covered by the
terms of a collective-bargaining agreement. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967).
This duty includes providing information relevant to contract administration. Allison Corp., 330
NLRB 1363, 1367 (2000); Shoppers Food Warehouse, 315 NLRB 258, 259 (1994). The Board
applies a broad discovery-type standard of relevance and the union need only make a showing
that the requested information would be of use to it in carrying out its statutory duties and
responsibilities. NLRB v. Acme Industrial Co., above at 437. Information concerning
employees covered by the collective-bargaining agreement is presumptively relevant. Contract
Flooring Systems, 344 NLRB 925, 928 (2005); Sheraton Hartford Hotel, 289 NLRB 463 (1988).
Where, as here, the Union seeks information concerning matters outside the bargaining unit
such as those related to a single-employer or double-breasted operation, it has the burden of
establishing the relevance of the information. Cannelton Industries, 339 NLRB 996, 997(2003);
Reiss Viking, 312 NLRB 622, 625 (1993); C.E.K. Industrial Mechanical Contractors, 295 NLRB
635, 337 (1989). A union cannot meet its burden based on a mere suspicion that such a
relationship exists but must have “an objective factual basis for believing such a relationship
exists.” Cannelton Industries, above at 997. Under current Board law, the union is not
obligated to disclose those facts at the time of the request. It is sufficient that the General
Counsel demonstrate at the hearing that the union had, at the relevant time, a reasonable belief.
Id.; Corson & Gruman, 278 NLRB 329,333-334 fn. 3 (1986). It is the role of the Board, not the
employer to determine whether the union’s evidence supports a reasonable belief. Cannelton
Industries, above at 997; Bentley-Jost Electric Corp, 283 NLRB 564, 568 (1987).
In the Union’s December 12 information request, it notified Respondent that it
understood that it was affiliated or otherwise related to SIW and that it sought the requested
information in order to police contractor compliance with existing collective-bargaining
agreements. In the follow-up request of January 2, Union official McHugh stated that
_________________________
request. It was admitted into evidence without objection. Although McHugh testified that he
had never before seen the letter, I credit Dennebaum’s testimony that it was sent.
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Respondent had performed relatively little work pursuant to its collective-bargaining agreement
with the Union and that the work it did perform was pursuant to an arrangement with SIW which
“has contracted to have the vast majority of field work performed by non-Union contractors.”
McHugh stated his understanding that the two companies have common ownership and that it
was in order to explore the commonality of ownership and operations that he was seeking the
requested information.
At the hearing, the evidence established that at the time of the Union’s information
request McHugh had a reasonable belief that Respondent had performed relatively little work
compared to what SIW had done under its collective-bargaining with the Union, prior to the
formation of Respondent; that the two companies operated from premises located on the same
property; that the same family owned both companies; that Mark Dennebaum served as an
officer of both companies; and that the two companies shared equipment, trucks, and at least
one employee. Although Respondent attempts to dismiss the factors underlying McHugh’s
understanding of the relationship of Respondent and SIW as unfounded, “the Union need not
show that the information that triggered its request is accurate or even ultimately reliable.”
Reiss Viking, above at 625. It is not the purpose of this proceeding to resolve the issue of the
relationship, if any, between SPEC and SIW but to determine whether the Union had a
reasonable objective basis for believing a relationship exists between the two entities that
impacts the bargaining unit it represents.
I find that the evidence establishes that the Union had a reasonable basis to believe that
the Respondent and SIW might be operating as alter-egos or a single-employer or engaged in a
double-breasted operation, and if so, SIW’s use of non-union contractors may have violated the
subcontracting clause in the Union’s collective-bargaining with Respondent. Consequently, the
information concerning their relationship and operations was relevant to the Union’s collective-
bargaining duties and Respondent’s refusal to provide it had no lawful justification. Pulaski
Construction Co., 345 NLRB 931, 932 (2005); Contract Flooring Systems, 344 NLRB 925
(2005); Cannelton Industries, above at 997. As the parties have noted, the Third Circuit has
held, in Hertz Corp. v. NLRB, 105 F.3d 868 (1997), that a union must do more than state the
reason and authority for an information request and must apprise the employer of facts tending
to support that request and some Board members have questioned the Corson & Gruman
standard. See Pulaski Construction Co. and Contract Flooring Systems, above. However,
here, as in those cases, at the hearing the Union apprised the Respondent of the facts
underlying its belief that an alter ego, single employer, and/or double-breasted relationship
exists and it has met the Hertz Corp. standard as well as the Corson & Gruman standard.2
Respondent contends that the Union’s information request submitted by is overly
burdensome and intrusive and was made in bad faith. There has been no showing that any of
the information the Union requested involves confidential information. An employer may not
simply refuse to comply with a request it considers overly broad and/or onerous. Keauhou
Beach Hotel, 298 NLRB 702 (1990). Respondent was obligated to notify the Union of its
objections to the request and request clarification, if necessary, and/or to offer to bargain about
any accommodation it considered appropriate. Hospital Episcopal San Lucas, 319 NLRB 54, 57
(1995); Martin Marietta Energy Systems, 316 NLRB 868 (1993). Otherwise, the Union had no
way of knowing how to frame a more limited request and no incentive to so in the expectation a

2 Although the Union’s information request only mentions double-breasting, it was clear that
it was seeking the information to explore the relationship between the two companies. Until the
information is provided, it cannot be expected to precisely describe the nature of the
relationship, if any.
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more limited request would be honored. Colgate-Palmolive Co., 261 NLRB 90, 92 fn. 12 (1982)
Both of the letters Dennebaum sent to the Union in response to its information request simply
denied that it was entitled to any of the information it had requested. Respondent’s contention
that the burden was the Union to somehow follow up on its blanket refusal to provide any
information is not persuasive. I find that Respondent violated Section 8(a)(5) and (1) of the Act
by failing refusing to furnish the Union with the information requested in its letter dated
December 12, 2006.
I also find that Respondent has failed to establish its claim that the Union’s information
request, prepared by McHugh, was not a good faith request for relevant information but was
simply meant to harass and retaliate against Respondent for terminating him from a job
approximately 16 years before. Dennebaum testified that around 1990 he had once fired an
entire crew of workers that included McHugh. McHugh testified that he had quit a job with the
Respondent in 1986 or 1987 and denied that he had been terminated. Whatever happened, I
find no evidence that this matter had any bearing on the Union’s request for relevant information
in December 2006.
Conclusions of Law
1. Respondent, Steel Products Erection Corporation 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.
3. Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to
provide the Union with relevant information requested in its letter dated December 12, 2006.
4. The foregoing unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, Respondent must furnish the Union with the
information requested in its letter dated December 12, 2006.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended3
ORDER
The Respondent, Steel Products Erection Corporation, Scranton, Pennsylvania, its
officers, agents, successors, and assigns, shall

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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1. Cease and desist from
(a) Failing and refusing to provide the Union with the information requested by
letter dated December 12, 2006.
(b) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Furnish to the Union the information requested by the Union in its letter dated
December 12, 2006.
(b) Within 14 days after service by the Region, post at its facility in Scranton,
Pennsylvania, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms
provided by the Regional Director for Region 4, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed by the Respondent
at any time since December 12, 2006.
(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. December 28, 2007
____________________
Richard A. Scully
Administrative Law Judge

4 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the 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.”
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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 Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to bargain collectively with International Association of Bridge, Structural,
Ornamental and Reinforcing Iron Workers, Local 489, AFL–CIO, by refusing to supply it with
information concerning its relationship with Standard Iron Works.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL furnish to the Union in a timely fashion the information requested.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
615 Chestnut Street, One Independence Mall, 7th Floor
Philadelphia, Pennsylvania 19106-4404
Hours: 8:30 a.m. to 5 p.m.
215-597-7601.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 215-597-7643.