Structure Tone, Inc.

National Labor Relations Board - Administrative Judge Opinions

Apr 22, 2008

22-CA-028139 (N.L.R.B. Apr. 22, 2008)

JD(NY)-14-08
Newark, NJ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
STRUCTURE TONE, INC.
And Case No. 22-CA-28139
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 825
Benjamin Green, Esq., Counsel for the General Counsel.
Paul Montalbano, Esq., Cohen, Leder, Montalbano & Grossman, Counsel for the
Charging Party.
Aaron Schlesinger, Esq., Peckar & Abramson, Counsel for the Respondent.
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on
March 25, 2008 in Newark, New Jersey. The Complaint herein, which was based upon
an unfair labor practice charge that was filed on November 27, 20071 by International
Union of Operating Engineers, Local 825, herein called the Union, alleges that since
about November 26, Structure Tone, Inc., herein called the Respondent, has failed and
refused to furnish the Union with information that it requested, which information is
necessary for, and relevant to, the Union’s performance as the collective bargaining
representative of certain of the Respondent’s employees. It is alleged that the failure to
furnish this requested information violates Section 8(a)(1)(5) of the Act.
Findings of Fact
I. Jurisdiction
The Respondent admits, and I find, that it has been an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.
II. Labor Organization Status
Respondent admits, and I find, that the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
III. The Facts
The Union and the Respondent are parties to a Section 8(f) collective bargaining
agreement effective for the period July 1, 2005 through June 30, 2008. Stated briefly, the
unit is the Respondent’s employees engaged in the operation of power equipment within

1 Unless indicated otherwise, all dates referred to herein relate to the year 2007.
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the Union’s jurisdiction of the State of New Jersey, as well as Delaware, Ulster, Orange,
Sullivan and Rockland Counties in the State of New York. The agreement states that the
parties “agree to make all assignments of work covered by this Collective Bargaining
Agreement to the Employees covered hereunder” and it contains an exclusive hiring hall,
which provides that whenever desiring to employ workmen, the employer will call upon
the Union to provide these workmen, and the Union shall refer the workmen from an
open employment list. The agreement does not contain an arbitration provision. The sole
witness at the hearing herein was Paul Montalbano, counsel for the Union. He testified
that the Respondent usually notifies the Union’s business agent of a new project
resulting in a pre-trial conference to discuss the project and the number of employees
that will be required to staff the project. On other occasions, the Respondent will simply
call the Union’s hiring hall to dispatch employees to the project. However, in September,
the Union was informed by the Essex County Buildings Trade Council of a job being
performed by the Respondent in Newark, New Jersey, herein called the Halsey Street
job. The Respondent had not informed the Union of this job, although the Union had
previously provided the Respondent with employees for this job site. From about
October 15 to October 22 the Union picketed the Halsey Street job, resulting in a Section
10(k) hearing on November 5.2 Montalbano testified that at this hearing he questioned
Respondent’s project manager about other work the Respondent was performing in
either New Jersey or the five counties in New York State within the Union’s jurisdiction,
but found his answers “evasive.” As a result, on the following day, Montalbano wrote to
David Cahill, of the Respondent, inter alia:
As the bargaining representative of the employees of Structure Tone who
perform the work of operating power driven equipment on construction projects,
Local 825 seeks to properly administer the collective bargaining agreement.
Accordingly, it is requested that Structure Tone please provide a detailed
itemized listing identifying each and every current active construction project of
Structure Tone, which projects are located in the State of New Jersey and/or the
counties of Delaware, Ulster, Sullivan, Rockland and Orange in New York State.
Along with an identification of the project, an actual street address is necessary
to enable the Business Agents to visit the site in order to make site inspections
and to speak with bargaining unit employees.
The first response that he received was a letter dated November 26 from Aaron
Schlesinger, counsel for the Respondent, stating, inter alia: “please be advised that
Structure Tone is not currently involved in any active construction which is covered by its
collective bargaining agreement with Local 825 in the State of New Jersey and/or the
counties of Delaware, Ulster, Sullivan, Rockland and Orange in New York State.”
Montalbano then asked the Union’s business agents to inquire whether the Respondent
was performing any other jobs within the Union’s jurisdiction. He was informed that the
Respondent was performing a job in Jersey City, New Jersey and, in fact, had made
contributions to the Union’s funds on behalf of one of its members for the payroll period
November 14 through November 26. By letter dated November 28 Montalbano wrote to
Schlesinger saying that he was in receipt of his November 26 letter denying that the
Respondent is involved in any active construction in the area covered by the agreement
between the Respondent and the Union, continuing,

2 Respondent, in his brief, characterizes this picketing as unlawful. This is his conclusion as the
Board has not yet ruled on the Respondent’s 8(b)(4)(D) unfair labor practice charge.
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That, of course, states Structure Tone’s opinion. As you know from prior
discussions, as well as the Local 825 position as stated at the recent NLRB
hearing, Local 825 believes that the Structure Tone project at the Newark
Morgan Stanley facility is covered by the collective bargaining agreement.
During the course of the hearing, Project Managers for Structure Tone indicated
that there are active construction projects ongoing in New Jersey and perhaps
elsewhere in the other five counties of New York that are within the Local 825
jurisdiction. It is Local 825’s obligation to police the collective bargaining
agreement, with such policing involving investigation as to whether or not
Structure Tone is properly adhering to contract provisions at active construction
projects. As long as there are active construction projects by Structure Tone in
the Local 825 jurisdiction, Local 825 has a right to make a site visit to investigate
contract compliance. Through independent investigation, we have learned that
the representations set forth in your letter are not accurate. The purpose of this
letter is to alert you to the inaccuracy, provide you with an opportunity for
correction and further, to provide the other information which was originally
requested and that is identification of the name and address location of each and
every active project by Structure Tone in the Local 825 area.
Failure to produce such information does constitute a violation of Structure
Tone’s obligation to bargain in good faith with Local 825. Please act accordingly.
Neither Schlesinger nor the Respondent replied to this request. As stated in the letter to
Schlesinger, Montalbano testified to the reason for the request:
The union has an obligation to…the membership to make sure employers who
are signatory to a contract assign work that is under the collective bargaining
agreement to the hiring hall members. That’s how our members earn their living.
So, we wanted to make a site investigation to determine whether or not Structure
Tone was assigning work that comes within the jurisdiction of the union to
members of Operating Engineers.
The Respondent, in its Answer, denied that the requested information relates to the
bargaining unit at issue and further alleges that the Union wants this information for the
purpose of engaging in unlawful conduct, i.e., picketing at the sites requested.
IV. Analysis
It is well settled that an employer’s duty to bargain in good faith with the union
representing its employees includes the obligation to supply the union with requested
information that will enable the union to properly perform its duties as the bargaining
representative of these employees. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967);
Crowley Marine Services, Inc. v. NLRB, 234 F.3d 1295, 1297 (D.C. Cir. 2000); CEC,
Inc., 337 NLRB 516, 518 (2002). This duty “undoubtedly extends to data requested in
order properly to administer and police a collective bargaining agreement.” Oil, Chemical
& Atomic Workers Local Union v. NLRB, 711 F.2d 348, 358 ((D.C. Cir. 1983). Where, as
here, the requested information concerns matters that are apparently outside the
bargaining unit, such as those related to single employer or alter ego status, or when the
request is to determine if work being performed belongs in the unit, the union bears the
burden of establishing the relevance of the requested information. Although mere
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suspicion is not enough to satisfy this burden, potential or probable relevance is
sufficient to give rise to an employer’s obligation to provide the requested information,
although the union is not obligated to disclose these facts to the employer at the time of
the request. Cannelton Industries, Inc., 339 NLRB 996, 997 (2003). All that is required is
for the General Counsel to demonstrate at the hearing that the union had at the relevant
time a reasonable belief. Knappton Marine Corp., 292 NLRB 236, 238-239 (1988). The
union was not required to establish that the information that triggered its request was
accurate or ultimately reliable, and the information supporting the request may be based
upon hearsay. Magnet Coal, Inc., 307 NLRB 444 fn. 3 (1992); CEC, Inc., supra.
I find that, as set forth in Montalbano’s testimony, as well as his letter of
November 28 to Schlesinger, the Union has satisfied its burden and demonstrated the
relevance of the requested information. The Union learned of the Halsey Street job and
received notice that the Respondent had contributed to the Union funds for the Jersey
City job that the Union previously was unaware of. That was adequate to raise its
suspicions that there might be other jobs as well. While the Union’s suspicions may have
been unwarranted, and, ultimately, the evidence may have established that the
Respondent was not performing any unit work within the Union’s jurisdiction, there was
sufficient evidence to support the Union’s request.
Although Schlesinger’s November 26 letter to Montalbano states that the
Respondent is not engaged in any other job within the Union’s jurisdiction, the Union is
not required to accept this warranty in lieu of the requested information. Shoppers Food
Warehouse, 315 NLRB 258, 259 (1994). If it were obligated to accept such a warranty
from the employer, there would be no need for the Section 8(a)(5) right to information.
Finally, the Respondent defends that the Union wants this information in order to
engage in unlawful picketing at the requested sites. While the Union did picket the
Halsey Street job in October, which picketing has not been found to be unlawful, this
defense is conjecture in two respects: that the Union intends to engage in picketing
these job sites and that the picketing will be unlawful. In Associated General Contractors
of California, 242 NLRB 891, 894 (1979), the Board stated: “It is well established that,
where a union’s request for information is for a proper and legitimate purpose, it cannot
make any difference that there may also be other reasons for the request or that the
data may be put to other uses.” See also Utica Observer-Dispatch v. NLRB, 229 F.2d
575, 577 (2d Cir. 1956). In NLRB v. CJC Holdings, Inc., 97 F.3d 114, 117 (5th Cir. 1996),
the Court stated: “The possibility that a union may use relevant information for a purpose
the employer finds objectionable is no justification for withholding it.” In a similar situation
in Vanguard Fire & Supply Co., Inc., 345 NLRB 1016, 1040 (2005), the administrative
law judge stated:
If Respondent argues that it feared the Union would use the requested jobsite
information to plan lawful picketing, its argument must fail. When a union
engages in lawful primary picketing, it acts within the scope of its duties as the
exclusive bargaining representative. Moreover, picketing is a long-established
Section 7 right. An employer cannot justify withholding requested information by
asserting that the union will use it to engage in protected activity.
I therefore find that the Union has sustained its burden of establishing that the
information that it requested was relevant to it as the collective bargaining representative
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of certain of the Respondent’s employees, and that by refusing to furnish this information
to the Union, the Respondent violated Section 8(a)(1)(5) of the Act.
Conclusions of Law
1. The Respondent has been an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.
2. The Union has been a labor organization within the meaning of Section 2(5) of
the Act.
3. By failing and refusing to furnish the Union with the information that it
requested on November 6 and November 28, 2007, which information was relevant to
the Union as the bargaining representative of certain of the Respondent’s employees,
the Respondent violated Section 8(a)(1)(5) of the Act.
The Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I
find that it must be ordered to cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act. Specifically, I shall recommend
that the Respondent furnish the Union with the information it requested in Montalbano’s
letters dated November 6 and November 28, 2007
Upon the foregoing findings of fact, conclusions of law and the entire record, I
hereby issue the following recommended3
ORDER
The Respondent, Structure Tone, Inc., its officers, agents, successors and
assigns, shall:
1. Cease and desist from refusing to bargain collectively in good faith with
International Union of Operating Engineers, Local 825 by failing and refusing to furnish it
with the information that it requested in November 2007 regarding jobs that it was
performing, and in any like or related manner, interfering with, restraining or coercing
employees in the exercise of their rights guaranteed by Section 7 of the Act.
2. Take the following action necessary to effectuate the policies of the Act
(a) Within 14 days from the date of this Order, furnish the Union with the
information requested in the letters of November 6 and November 28, 2007.
(b) Post at its main office and all job sites in the State of New Jersey, as well as
the counties of Delaware, Ulster, Orange, Sullivan and Rockland in the State of New

3 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations,
the findings, conclusions and recommended Order shall, as provided in Section 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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York copies of the attached notice marked “Appendix.4” Copies of the notice, on forms
provided by the Regional Director for Region 22, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent immediately 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) 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., April 22, 2008.

__________________________
Joel P. Biblowitz
Administrative Law Judge

4 If this Order is enforced by a Judgment of the 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.”
JD(NY)-14-08
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APPENDIX
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 abide by 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 Union of Operating
Engineers, Local 825 (“the Union”) by refusing to furnish the Union with information that
it requested, which information was relevant to the Union as the bargaining
representative of certain of our employees.
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, within 14 days of the date of this Order, furnish the Union with the information
that it requested on November 6 and November 28, 2007.
STRUCTURE TONE, INC.
(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.
20 Washington Place, 5th Floor
Newark, New Jersey 07102-3110
973-645-2100
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, 973-645-3784.
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