Structure Tone, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2008

352 N.L.R.B. 1135 (N.L.R.B. 2008)

STRUCTURE TONE, INC.
352 NLRB No. 132
1135
Structure Tone, Inc. and International Union of Op-
erating Engineers, Local 825. Case 22–CA–
28139
August 27, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On April 22, 2008, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
brief and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order as modified and set forth in full below.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Structure Tone, Inc., Newark, New Jersey,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union, In-
ternational Union of Operating Engineers, Local 825, by
failing and refusing to provide the Union with the infor-
mation requested in its letters dated November 6 and 28,
2007.

1 The judge noted that at the time of his decision, the Board had not
issued a Decision and Determination of Dispute in a related 10(k) pro-
ceeding involving the Union’s picketing at one of the Respondent’s
worksites. The Board has since found reasonable cause to believe that
this picketing violated Sec. 8(b)(4)(D) of the Act and has awarded the
disputed work on that project to an employee of the building owner.
Operating Engineers Local 825 (Structure Tone, Inc.), 352 NLRB No.
77 (2008). Accordingly, the Respondent’s request that the Board re-
frain from deciding this information request case while the jurisdic-
tional dispute is pending is moot.
The judge assumed, without finding, that the information requested
by the Union, regarding the Respondent’s active construction projects
in the geographic area covered by the Union’s collective-bargaining
agreement, related to nonunit employees. That assumption underlay
the judge’s evaluation of the Union’s demonstration of relevance. In
the absence of exceptions, we make the same assumption.
2 We shall substitute the Board’s standard language for certain pro-
visions of the judge’s recommended Order and notice.
Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Promptly furnish the Union with the information it
requested in its letters dated November 6 and 28, 2007.
(b) Within 14 days after service by the Region, post at
its Newark, New Jersey office, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 22,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any material. In the event that,
during the pendency of these proceedings, the Respon-
dent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of this notice to
all employees employed by the Respondent at any time
since November 26, 2007.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official, on a form provided by the Region,
attesting to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1136
WE WILL NOT refuse to bargain collectively with the
Union, International Union of Operating Engineers, Lo-
cal 825, by failing and refusing to provide the Union
with the information requested in its letters dated No-
vember 6 and 28, 2007.
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 promptly furnish the Union with the informa-
tion it requested in its letters dated November 6 and 28,
2007.
STRUCTURE TONE, INC.
Benjamin Green, Esq., for the General Counsel.
Aaron Schlesinger, Esq. (Peckar & Abramson), for the Re-
spondent.
Paul Montalbano, Esq. (Cohen, Leder, Montalbano &
Grossman), for the Charging Party.
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, 2007,1 by In-
ternational Union of Operating Engineers, Local 825 (the Un-
ion), alleges that since about November 26, Structure Tone, Inc.
(the Respondent), has failed and refused to furnish the Union
with information that it requested, which information is neces-
sary for, and relevant to, the Union’s performance as the collec-
tive-bargaining representative of certain of the Respondent’s
employees. It is alleged that the failure to furnish this re-
quested information violates Section 8(a)(1) and (5) of the Act
(the Act).
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits, and I find, that it has been an em-
ployer 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 la-
bor organization within the meaning of Section 2(5) of the Act.
III. THE FACTS
The Union and the Respondent are parties to an 8(f) collec-
tive-bargaining agreement effective for the period July 1, 2005,
through June 30, 2008. Stated briefly, the unit is the Respon-
dent’s employees engaged in the operation of power equipment
within 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

1 Unless indicated otherwise, all dates referred to herein relate to the
year 2007.
the parties “agree to make all assignments of work covered by
this Collective Bargaining Agreement to the Employees cov-
ered hereunder” and it contains an exclusive hiring hall, which
provides that whenever desiring to employ workmen, the em-
ployer 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 pretrial 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 Septem-
ber, the Union was informed by the Essex County Buildings
Trade Council of a job being performed by the Respondent in
Newark, New Jersey (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
jobsite. From about October 15 to 22, the Union picketed the
Halsey Street job, resulting in a 10(k) hearing on November 5.2
Montalbano testified that at this hearing he questioned Respon-
dent’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 an-
swers “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 Struc-
ture Tone who perform the work of operating power driven
equipment on construction projects, Local 825 seeks to prop-
erly administer the collective bargaining agreement. Accord-
ingly, it is requested that Structure Tone please provide a de-
tailed itemized listing identifying each and every current ac-
tive 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 ac-
tual 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 No-
vember 26, from Aaron Schlesinger, counsel for the Respon-
dent, 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 26.

2 Respondent, in his brief, characterizes this picketing as unlawful.
This is his conclusion as the Board has not yet ruled on the Respon-
dent’s 8(b)(4)(D) unfair labor practice charge.
STRUCTURE TONE, INC. 1137
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,
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 bar-
gaining 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 po-
lice the collective bargaining agreement, with such polic-
ing 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 con-
struction projects by Structure Tone in the Local 825 ju-
risdiction, Local 825 has a right to make a site visit to in-
vestigate contract compliance. Through independent in-
vestigation, 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 Engi-
neers.
The Respondent, in its answer, denied that the requested infor-
mation relates to the bargaining unit at issue and further alleges
that the Union wants this information for the purpose of engag-
ing 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 bar-
gaining representative of these employees. NLRB v. Acme In-
dustrial Co., 385 U.S. 432 (1967); Crowley Marine Services 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 col-
lective bargaining agreement.” Oil, Chemical & Atomic Work-
ers 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 re-
quested information. Although mere 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. Cannel-
ton Industries, 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 informa-
tion supporting the request may be based upon hearsay. Mag-
net 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 satis-
fied 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 Un-
ion’s 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. Shop-
pers 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 in-
formation in order to engage in unlawful picketing at the re-
quested 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 in-
tends to engage in picketing these jobsites and that the picket-
ing 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 differ-
ence 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1138
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., 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 ar-
gument 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 with-
holding 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 es-
tablishing that the information that it requested was relevant to
it as the collective-bargaining representative 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) and (5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union has been a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By failing and refusing to furnish the Union with the in-
formation that it requested on November 6 and 28, 2007, which
information was relevant to the Union as the bargaining repre-
sentative of certain of the Respondent’s employees, the Re-
spondent violated Section 8(a)(1) and (5) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain un-
fair 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 recom-
mend that the Respondent furnish the Union with the informa-
tion it requested in Montalbano’s letters dated November 6 and
28, 2007.
[Recommended Order omitted from publication.]