Union Builders

National Labor Relations Board - Board Decisions

Feb 21, 1995

316 N.L.R.B. 406 (N.L.R.B. 1995)

406
316 NLRB No. 83
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Union’s underlying unfair labor practice charge was filed on
February 9, 1994, and served on February 16, 1994 (Jt. Exh. 7). The
charge alleges two violations: (1) Respondent’s refusal to provide in-
formation, inter alia, pertaining to its use of a nonunion alter ego,
O. Ahlborg and Sons, Inc.; (2) that Respondent unlawfully has
owned and operated a nonunion alter ego. On March 30, 1994, the
Regional Director issued a complaint alleging violation of Sec.
8(a)(1) and (5), relating, however, only to Respondent’s failure to
provide the requested information to the Union. With regard to the
assertion that Respondent unlawfully operated a nonunion alter ego,
the Regional Director dismissed the charge under Sec. 10(b) of the
Act. The Union apparently had reasonable cause to believe that Re-
spondent was operating an alter ego as early as April 22, 1993, and
yet failed to file an unfair labor practice charge regarding that status
until February 14, 1994, more than 6 months after acquiring such
knowledge. Pursuant to the restrictions imposed by Sec. 10(b), the
Regional Director concluded that that portion of the charge was filed
more than 6 months after the alleged unlawful conduct occurred and
therefore was subject to the limitation provisions of Sec. 10(b) of
the Act. However, the Regional Director issued complaint on the
first assertion, above, that Respondent had unlawfully failed to fur-
nish the Union with information regarding alter ego status requested
by the Union on December 8, 1993.
The Regional Director also mentioned an alternative ground for
the dismissal of the portion of the charge asserting the existence of
the alter ego. She observed that the May 1992 agreement (between
the Union and the alleged alter ego, O. Ahlborg & Sons, Inc.) which
created Respondent appeared to be ambiguous: that although bar-
gaining unit work was to be performed by Respondent, it might be
plausibly interpreted to permit such work (allegedly siphoned off to
the alter ego) by the alter ego. The Board does not resolve disputes
over the interpretation of contract language. This alternative state-
ment, however, did not refer to Respondent’s alleged unlawful fail-
ure to supply the requested information.
Union Builders, Inc. and District Council 94, United
Brotherhood of Carpenters and Joiners of
America, AFL–CIO. Case 1–CA–31377
February 21, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On December 2, 1994, Administrative Law Judge
Robert W. Leiner issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
Union filed an answering brief, and the General Coun-
sel filed a brief in support of the judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Union Builders, Inc., West
Warwick, Rhode Island, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Catherine E. D’Urso, Esq., for the General Counsel.
Andrew B. Prescott, Esq. (Tillinghast, Collins & Graham), of
Providence, Rhode Island, for the Respondent.
Marc B. Gursky, Esq., of Providence, Rhode Island, for the
Union.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This mat-
ter was heard on October 27, 1994, in Boston, Massachu-
setts, on General Counsel’s complaint, of March 30, 1994
(misdated March 30, 1993) which alleges, in substance, that
Respondent, Union Builders, Inc. (sometimes UBI) violated
Section 8(a)(5) and (1) of the Act by its refusal, commencing
December 8, 1993, to furnish information requested by the
Union, allegedly necessary for and relevant to the Union’s
performance of its duties as the exclusive collective-bargain-
ing representative of unit employees.1
Respondent’s timely answer admits certain allegations of
the complaint, denies others, and denies the commission of
unfair labor practices. In particular, Respondent denies that
the Union had a reasonable belief that Respondent had been
operating an ‘‘alter ego’’ and therefore has no right to the
requested information. Affirmatively, Respondent defends on
the ground (a) that the dismissal of the alter ego allegation
in the Union’s unfair labor practice charge ‘‘moots the
Union’s request for information regarding O. Ahlborg, the
perported alter ego’’; and (b) that the complaint, based upon
actions occurring prior to August 14, 1993, is barred by Sec-
tion 10(b) of the Act.
At the hearing, all parties were separately represented by
counsel, were given full opportunity to call and examine the
witnesses, to submit relevant oral and written evidence, and
to argue orally on the record. At the close of the hearing,
the parties waived final argument and elected to file
posthearing briefs all three of which have been received and
carefully considered.
On the entire record, including the briefs, and on my ob-
servation of the demeanor of the witnesses as they testified,
comparing such testimony with the testimony of the oppos-
ing witnesses, the interest of the witnesses and documentary
evidence, I make the following
FINDINGS OF FACT
I. RESPONDENT AS STATUTORY EMPLOYER
The complaint alleges, Respondent admits, and I find that
Respondent, a Rhode Island corporation, currently maintains
an office and place of business in West Warwick, Rhode Is-
land, where it has been engaged in the business of a sub-
contractor in the construction industry. During the 12-month
period ending March 18, 1994, Respondent, in conducting its
business operations, performed services valued in excess of
$50,000 in States other than the State of Rhode Island. Re-
spondent concedes, and I find, that at least since June 1,
1992, to the present time, Respondent has been and is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
407UNION BUILDERS
2 Respondent also admits that at all material times, Eric Ahlborg,
president of Respondent, has been and is a supervisor and agent of
Respondent within the meaning of Sec. 2(11) and (13) of the Act.
Eric Ahlborg, testified in addition, that while he is the chief execu-
tive officer of Respondent, he has also been, at all material times,
a project manager (and now a senior project manager) of O. Ahlborg
& Sons, Inc.
3 He receives no salary from Respondent. His sole salary comes
only from his work as project manager for O. Ahlborg and Sons,
Inc. He is a shareholder in both corporations.
4 Telephone calls to Respondent’s phone number reach an answer-
ing tape. Union Agent Palmisciano testified that he regularly reaches
UBI by telephoning UBI President Eric Ahlborg at O. Ahlborg and
Sons, Inc.
5 Respondent concedes that the unit described in art. II of the col-
lective-bargaining agreement (Jt. Exh. 6) is a unit appropriate for
collective bargaining within the meaning of Sec. 9(b) of the Act; that
UBI granted to the Union recognition as the exclusive collective-bar-
gaining representative of the unit employees without regard to
whether the majority status of the union had ever been established
under the provisions of Sec. 9(a) of the Act; and that for the period
commencing June 1, 1992, pursuant to Sec. 9(a) of the Act, the
Union has been the limited exclusive collective-bargaining represent-
ative of the unit employees.
II. THE UNION AS A STATUTORY LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that
at least since June 1992, the Union has been a labor organi-
zation within the meaning of Section 2(5) of the Act.2
III. THE ALLEGED UNFAIR LABOR PRACTICES
By virtue of admissions in the pleadings, the documents
in evidence, a stipulation of facts (Jt. Exhs. 1–7) and pursu-
ant to uncontradicted testimony of the two witnesses in this
case (David F. Palmisciano, business agent of the Union, and
Eric Ahlborg, president of Respondent) I make the following
findings.
O. Ahlborg & Sons, Inc., a Rhode Island corporation with
offices at 48 Molter Street, Cranston, Rhode Island, orga-
nized in April 1926, has been and is engaged in general
building construction (G.C. Exh. 3). Its chief executive offi-
cer is President Richard W. Ahlborg; its chief operating offi-
cer is Vice President Glenn R. Ahlborg; and its chief finan-
cial officer and treasurer is Richard W. Ahlborg. Glenn
Ahlborg is Richard Ahlborg’s son. The three directors are
Richard Ahlborg, Glenn Ahlborg, and Raymond L.
Dauplaise.
Respondent’s answer notwithstanding, pursuant to the tes-
timony of Eric Ahlborg at the hearing, there is no dispute
that O. Ahlborg & Sons, Inc. is the alleged ‘‘alter ego’’
about whom information was requested in the Union’s De-
cember 8, 1993 request served on the Respondent. Under
Rhode Island statutes, and its corporate reports, the registered
agent for receiving process on O. Ahlborg & Sons, Inc. is
Richard W. Ahlborg, 48 Molter Street, Cranston, Rhode Is-
land.
Respondent, organized on June 1, 1992, to engage in the
business of building construction and related activities, with
its present office at 5 James Murphy Drive, West Warwick,
Rhode Island, has Eric S. Ahlborg (son of Richard Ahlborg)
as both the chief executive and operating officer and presi-
dent of Respondent3 regardless of the assertion in Respond-
ent’s annual report to the State of Rhode Island (G.C. Exh.
2), that Nancy B. Ahlborg, vice president, is the chief operat-
ing officer. The corporate secretary of Respondent is Craig
W. Ahlborg (like Nancy B. Ahlborg, a child of Richard
Ahlborg). The chief financial officer and treasurer of Re-
spondent is Glenn R. Ahlborg (who, as above noted, is the
chief operating officer and secretary of O. Ahlborg and Sons,
Inc.). The directors of Respondent are Richard W. Ahlborg,
Eric Ahlborg, Nancy Ahlborg, Craig Ahlborg, and Glenn
Ahlborg. Respondent’s registered agent for receiving process
is Eric S. Ahlborg, 48 Molter Street, Cranston, Rhode Island.
This address is not the address provided to the State of
Rhode Island as Respondent’s principal office (G.C. Exh. 2);
rather, it is the address of O. Ahlborg and Sons, Inc., and
the same address for receiving process as O. Ahlborg and
Sons, lnc.4
At all material times prior to 1989, O. Ahlborg & Sons,
Inc. was member of and bargained through the Rhode Island
Chapter, Associated General Contractors of America, Inc.
(AGC). In 1989, O. Ahlborg & Sons, Inc. executed a sepa-
rate, 3-year collective-bargaining agreement with the Union
containing substantially the same terms and conditions of
employment as that contained in the agreement between em-
ployers who bargained through the AGC and with whom the
Union had collective-bargaining agreements in Rhode Island.
On or about March 24, 1992, O. Ahlborg and Sons, Inc.
served timely written notice, pursuant to Section 8(d) of the
Act, notifying the Union (R. Exh. 2) that it was terminating
its agreement as of May 31, 1992, in the presence of a con-
tract clause providing for continuation from year to year un-
less either party notified the other of termination.
On May 29, 1992, as a result of collective bargaining with
the Union’s then business manager (Herbert F. Holmes), O.
Ahlborg & Sons, Inc. confirmed to the Union that they had
reached an agreement on May 28, 1992, whereby (1) there
would be no interruption in production or the employment of
union members together with their wages and benefits all due
to the expiration of the collective-bargaining agreement on
May 31, 1992, between O. Ahlborg & Sons, Inc. and the
Union; (2) a new employer entity would be created no later
than June 1, 1992, which would enter into a collective-bar-
gaining agreement with the Union, to be retroactive to June
1, 1992; (3) O. Ahlborg and Sons, Inc. and the Union further
agreed that all union bargaining unit work currently per-
formed by O. Ahlborg & Sons, Inc. would be assigned to the
new employer entity together with employees currently per-
forming that work and that there would be no interruption in
wages and benefits due to this assignment; and (4) the new
employer, it was agreed, would perform future union bar-
gaining unit work under the terms and conditions set forth
in the new agreement between the Union and the new entity
(Jt. Exh. 1).
Respondent was thereafter organized effective June 1,
1992 (G.C. Exh. 2) and entered into a 3-year (1992–1995)
collective-bargaining agreement with the Union covering a
unit described in article II of the new collective-bargaining
agreement.5
The collective-bargaining agreement between UBI and the
Union, for the period June 1, 1992, through June 4, 1995 (Jt.
Exh. 6) provides (art. II, sec. 5):
the Company will not subcontract any work covered by
the terms of this agreement which is to be performed
408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The collective-bargaining agreement between UBI and the Union
(Jt. Exh. 6) contains an arbitration provision (art. XVI) covering all
disputes interpreting, pertaining to, or arising out of the agreement.
7 Respondent complains that Eric Ahlborg was not permitted to
testify concerning the formation of UBI (Br. at p. 4). Eric Ahlborg
was not privy to the Holmes-Glenn Ahlborg agreement.
Palmisciano’s belief, based on hearsay, nevertheless constitutes ob-
jective evidence of his understanding of that agreement, Shoppers
Food Warehouse, 315 NLRB 258 (1994). There is no resolvable
credibiity issue, on this record, created by any Eric Ahlborg testi-
mony on this point. Contrary hearsay testimony of Eric Ahlborg, as
to his hearsay understanding, in no way would affect or modify
Palmisciano’s reasonable belief though equally derived from hearsay.
Nowhere in Respondent’s offer of proof would Eric Ahlborg testify
that he was present at the time of the agreement. Nor was Respond-
ent prevented from enquiring from Eric Ahlborg regarding his pres-
ence at conversations at any time with the Union concerning the
meaning or scope of the Holmes/Glenn Ahlborg agreement (Tr.
124). Nor did Respondent attempt to call Glenn Ahlborg to directly
contradict the reasonableness of Palmisciano’s hearsay belief derived
from conversations with Union Business Manager Holmes, or even
to provide the terms of the Holmes/Glenn Ahlborg agreement.
at the jobsite except to a contractor who holds an agree-
ment with the United Brotherhood of Carpenters and
Joiners of America, or one of its subordinates bodies,
or, who agrees, in writing, prior to or at the time of the
execution of the sub-contract, to be bound by the terms
of this agreement.
This collective-bargaining agreement (Jt. Exh. 6, between
UBI and the Union) was negotiated by the then business
manager, Herbert F. Holmes. At that time David F.
Palmisciano was a union business representative. He is now
the business manager having replaced Holmes.
On December 8, 1993, Palmisciano, on behalf of the
Union, sent the following letter to Eric Ahlborg at UBI be-
cause of three earlier onsite inspections he made in Rhode
Island:
Dear Mr. Ahlborg:
We understand that you are operating a second com-
pany, which we believe is an alter ego.
Please fill out the enclosed questioner [sic] and re-
turn same to the District Council Office, as soon as
possible.
Sincerely,
David Palmisciano
Business Representative
The enclosed questionnaire contained 79 questions relat-
ing, inter alia, to Respondent’s ownership, corporate direc-
tors, suppliers, and its potential relationship to an alleged
nonunion employer.
When Eric Ahlborg received the December 8, 1993 letter,
he telephoned Palmisciano between December 15 and 18,
1993. Ahlborg asked him what the letter was about.
Palmisciano told him that he needed the information to sup-
port litigation against UBI because there was a violation of
the contract. Ahlborg told him that he was living up to the
contract. Palmisciano testified that he needed the information
to prove the alter ego status of O. Ahlborg and Sons, in a
grievance proceeding6 and in further litigation; that O.
Ahlborg had previously complained of an inability to bid
nonunion jobs which it had been prevented from bidding be-
cause of the now-expired collective-bargaining between O.
Ahlborg & Sons, Inc. and the Union. Palmisciano further tes-
tified, without objection, that Holmes told him that the ex-
press understanding between Glenn Ahlborg (who negotiated
the UBI contract with Holmes) and Holmes was that the new
entity, UBI, as a union contractor, would be awarded all
state, Federal, and other work where there were high wage
rates, particularly Davis-Bacon or other statutory ‘‘prevailing
rates’’ and that such work would all go to union carpenters.7
Palmisciano also testified concerning his spring 1993 visits
to three jobsites that prompted his conclusion that UBI was
using O. Ahlborg & Sons as an alter ego: the Independence
House job in Providence; the Mount Hope High School job
in Bristol, Rhode Island; and the Kaiser Mills job in Bristol,
Rhode Island (housing for the elderly). All three of these
jobs were ‘‘high rate’’ jobs requiring ‘‘prevailing rates’’ as
the employee wage rate. There is no dispute that ‘‘prevailing
rates’’ in such circumstances means union rates.
The Independence House job
O. Ahlborg & Sons, Inc. was the general contractor on the
job doing direct carpenter work or supervising work of non-
union carpenter subcontractors. The carpenter superintendent
on the job, however, Robert Jean, was a union member.
Palmisciano found this union superintendent was driving
around in an O. Ahlborg truck notwithstanding that Robert
Jean told him that UBI was paying his wages . Palmisciano
testified, that he concluded therefore, that a UBI employee
(Superintendent Robert Jean), paid by UBI, in fact, was su-
perintending the execution of carpenter work performed by
nonunion Ahlborg employees or by employees of subcontrac-
tors (nonunion) chosen by Ahlborg. Palmisciano testified that
the one thing that was clear was that UBI employees were
not on the job performing unit work.
Mount Hope High School
Similarly, in the spring of 1993, he visited the Mount
Hope High School job in Bristol, Rhode Island. It is
uncontradicted that this job, like Independence House, was a
‘‘prevailing rate’’ job. On this job he found George Regis as
the carpenter superintendent. Regis, a union member, was
driving an Ahlborg truck. On this job, members of the
Union, employed by UBI, were doing the carpentry and
foundation work with O. Ahlborg and Sons, Inc., acting as
general contractor. Palmisciano testified that he was on the
job to enquire whether other carpenter work within the UBI
contract’s jurisdictional definition of carpenter work (drywall,
hardwood floors, roofing, asphalt tile floors) was being done
or going to be done by employees of nonunion subcontrac-
tors notwithstanding that that work, performed by such em-
ployees, was forbidden by the subcontracting clause in the
collective-bargaining agreement. Other carpenter subcontrac-
tors were not yet on the job and Palmisciano was there to
check on whether this work, not yet actually performed, was
going to go to union subcontractors or directly to UBI em-
ployees. Palmisciano testified that he actually visited the job
because the superintendent of the Independence House job
had told him that the nonunion drywall contractor on the
409UNION BUILDERS
Independence job was going to be used on both the Mount
Hope job and the Kaiser Mills job.
Kaiser Mills
At the Kaiser Mills job in Bristol, Rhode Island, with O.
Ahlborg & Sons, Inc. as the general contractor, Palmisciano
was there to attempt to get carpenter union subcontractors on
the job. Palmisciano discovered that there were many non-
union contractors doing carpenter work on the job. Lindsay
Ahlborg, on the job, gave him a list of carpenter unit sub-
contractors on the job, none of whom had collective-bargain-
ing agreements with the Union. Such subcontracting nec-
essarily affected jobs for unit (union) members and contribu-
tions to union pension and welfare funds.
Eric Ahlborg testified concerning conversations with
Palmisciano on jobsites after the execution of the June 1992
contract between UBI and the Union. These conversations re-
lated entirely to Palmisciano’s concern that subcontracting
was being awarded to nonunion subcontractors on carpenter
work including drywall, carpet laying, flooring, and metal
stud work. Palmisciano was protesting the performance of
union work, particularly drywall work, by nonunion sub-
contractors employing nonmembers. Palmisciano urged Eric
Ahlborg to hire union people, union members, for such jobs.
Ahlborg told him that he understood that Respondent was
doing everything that it was supposed to do under the con-
tract. Palmisciano replied that what UBI was supposed to do
was to hire union members on prevailing rate jobs. Ahlborg
told him that Respondent was living up to the agreement;
that if there were UBI carpenters on the job, Respondent was
then living up to all of its contract obligations on wage rates,
pension contributions, and health and welfare contributions
by correct payment to the UBI employees. Ahlborg testified
that Palmisciano never told him that UBI was doing anything
illegal or that it was an alter ego or double-breasting em-
ployer. Ahlborg further testified that UBI never subcon-
tracted to nonunion carpenters or asked O. Ahlborg & Sons,
Inc. to subcontract to nonunion contractors. On the contrary,
he testified that he urged O. Ahlborg & Sons to give UBI
as much work as possible.
Discussion and Conclusions
In the recent Shoppers Food Warehouse, 315 NLRB at
259, the Board stated:
[I]t is well settled that an employer, on request, must
provide a union with information that is relevant to its
carrying out its statutory duties and responsibilities in
representing employees. NLRB v. Acme Industrial Co.,
385 U.S. 432 (1967). This duty to provide information
includes information relevant to contract administration
and negotiations. . . .
[W]here, as here, the information sought concerns mat-
ters outside the bargaining unit, such as those related to
single employer or alter ego status, a union bears the
burden of establishing the relevance of the requested in-
formation. . . . A union has satisfied its burden when
it demonstrates a reasonable belief supported by objec-
tive evidence for requesting the information. [Citations
omitted.]
The Board uses a broad, discovery-type standard in
determining relevance in information requests, including
those for which a special demonstration of relevance is
needed, and potential or probable relevance is sufficient
to give rise to an employer’s obligation to provide in-
formation. . . . In this regard, the Board does not pass
on the merits of a union’s claim of breach of a collec-
tive-bargaining agreement in determining whether the
information relating to the processing of a grievance is
relevant. [Citations omitted.]
. . . .
The Union [is] not required to show that the infor-
mation which triggered its request was accurate or ulti-
mately reliable, and a union’s information request may
be based on hearsay. [Citation omitted.]
As noted by the Supreme Court in NLRB v. Acme Indus-
trial Co., 385 U.S. 432 at 438, the requirement that informa-
tion of potential relevance be given to the Union upon the
proper request in no way threatens the arbitration process. In-
deed, the arbitration process (NLRB v. Acme Industrial Co.,
supra at 438–439):
can function properly only if the grievance procedures
leading to it can sift out unmeritorious claims. For if
all claims originally initiated as grievances had to be
processed through to arbitration, the system would be
woefully overburdened.
The Supreme Court held that the object of forcing the em-
ployer to divulge potentially relevant information is to pre-
vent forcing the union ‘‘to take the grievance all the way
through to arbitration without providing the opportunity to
evaluate the merits of the claim.’’
Where the Union establishes an objective basis for reason-
ably believing that O. Ahlborg and Sons, Inc. is the alter ego
of UBI, the Union is entitled to the information necessary to
establish whether its suppositions are true. Maben Energy
Corp., 295 NLRB 149 (1989). On the other hand, a reason-
able basis for believing that the two corporations have the
same owners and perform work of the same type would not
suffice to make the requested information about O. Ahlborg
& Sons, Inc. relevant to the Union’s performance of its col-
lective-bargaining responsibilities. Brisco Sheetmetal, 307
NLRB 361 fn. 1 (1992) (then-Chairman Stephens concur-
ring), citing United Constructors, 233 NLRB 904, 912–913
(1977).
In Southern Nevada Home Builders Assn., 274 NLRB 350
(1985), the multiemployer bargaining agent refused to furnish
to the Union a roster of those builder-members that were
bound to an agreement with the Union. The Board affirmed
the administrative law judge’s findings, in large part, based
upon five reasons why the membership list was relevant to
contract administration and enforcement purposes (Southern
Nevada Builders Assn., supra at 351). Among these five rea-
sons were (a) the Union needed to investigate the possibility
of subcontracting procedures in violation of contract limita-
tions and (b) the Union could use the information to inves-
tigate its suspicions about double breasting.
Palmisciano reasonably believed that O. Ahlborg & Sons,
Inc. (Glenn Ahlborg) and the Union (Herbert F. Holmes,
business manger) agreed that the purpose of the agreement
creating UBI (Jt. Exh. 6), inter alia, was to permit O.
410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Ahlborg and Sons, Inc. to bid nonunion work and to award
all ‘‘prevailing rate’’ jobs—the high paying jobs—to UBI.
There is no dispute that all three of the jobs (Independence
House, Mount Hope High School, and Kaiser Mills) which
Palmisciano visited in the spring and summer of 1993 were
all prevailing rate jobs. On the Independence House job, O.
Ahlborg & Sons’ employees were doing unit work and UBI
was not on the job at all, notwithstanding UBI was paying
the superintendent to supervise the unit work. At the Mount
Hope High School job, Palmisciano suspected, on the basis
of prior conversations with the superintendent on the Inde-
pendence House job, that, in violation of the subcontracting
restriction, the Mount Hope subcontractors on hardwood
floors, drywalls, roofing, and carpeting, all carpenter unit
work, would be nonunion. As Eric Ahlborg testified, when
Palmisciano visited him on the jobs, Palmisciano was pro-
testing the fact that drywall work was being done by non-
union employees and urged Ahlborg to hire more union help
notwithstanding that Ahlborg repeatedly stated that O.
Ahlborg & Sons, Inc. was living up to the collective-bargain-
ing agreement between UBI and the Union.
Thus, on the grounds that UBI and O. Ahlborg & Sons,
Inc. performed the same work, had common officers, direc-
tors, and shareholders; and that Palmisciano saw that at least
on the Independence House job, in the presence of a union
carpenter superintendent, UBI was not on the job and
Ahlborg was doing carpenter unit work, UBI might well be
in violation of the collective-bargaining agreement in permit-
ting O. Ahlborg, as an alter ego, to do unit work.
Palmisciano also reasonably believed that the agreement be-
tween Glenn Ahlborg and the Union that prevailing rate
work would go to UBI and union employees, was being vio-
lated through the use of an alter ego (particularly since Glenn
Ahlborg, vice president and director of O. Ahlborg and Sons,
Inc. and its chief operating officer, is also a director of
Union Builders, Inc. and works at 48 Molter Street along
with Eric Ahlborg, not merely UBI’s president, but O.
Ahlborg’s senior project manager). In short, therefore, the
Union could reasonably believe, from the relationship be-
tween the two corporations, what it had been told concerning
use of nonunion carpenter subcontractors and what it had
seen on the three jobs, in conjunction with the agreement be-
tween Glenn Ahlborg and Herbert Holmes (giving ‘‘prevail-
ing rate jobs to the union’’) that UBI was violating the col-
lective-bargaining agreement with the Union. The Union had
objective evidence that O. Ahlborg & Sons, Inc. might be
delegating unit work, covered in the unit description in the
UBI contract, to nonunion subcontractors, all because of the
close relationship between the two corporations. In addition,
the Union, particularly on the Independent House job, ap-
peared to find Ahlborg & Sons’ own employees (nonunion)
performing unit work in direct violation of Palmisciano’s un-
derstanding of the agreement between the Union and Glenn
Ahlborg that ‘‘prevailing rate’’ jobs would go to UBI and
union members. There is no dispute that the Independence
House job was a ‘‘prevailing rate’’ job. The Union’s in-
formed administration of the contract, including protection
and preservation of unit work (a mandatory subject of bar-
gaining) is a statutory right in addition to any contract prohi-
bitions against transfer of unit work. Bently-Yost Electric
Corp., 283 NLRB 564, 567 (1987).
Here, the Union, alleging a breach of the UBI contract,
threatening Eric Ahlborg that it was going to use the infor-
mation for grievance purposes or litigation, was apparently
attempting to protect the contract provision against sub-
contracting and was protesting the failure of the alleged alter
ego corporation (O. Ahlborg & Sons, Inc.) to live up to
Glenn Ahlborg’s 1992 agreement awarding ‘‘prevailing rate’’
work to UBI. Again, Glenn Ahlborg (who did not testify)
was a director of UBI and chief operating officer of O.
Ahlborg & Sons, Inc. Thus, relevant to contract administra-
tion and enforcement purposes, I conclude, from the objec-
tive evidence Palmisciano found on the Independence House
job, his understanding of the 1992 Holmes/Glenn Ahlborg
agreement on prevailing rate jobs together with the UBI con-
tract, and the intertwining of the two corporations, that, as
the Board concluded in Southern Nevada Building Assn.,
supra at 351, the subcontracting procedures on the Mount
Hope and Kaiser Mills jobs in possible violation of the con-
tract reasonably supported union suspicions that the two cor-
porations were operating Ahlborg & Sons, Inc. as an ‘‘alter
ego.’’The evidence procured by the Union on the jobsites, to-
gether with the relationship of the corporations, the agree-
ment to award prevailing rate jobs to UBI and the Union,
and the resulting apparent violation of the subcontracting re-
striction in the UBI agreement constitute the objective evi-
dence of unit work subversion by an alter ego supporting a
reasonable belief for requesting the information. Shoppers
Food Warehouse, supra; Southern Nevada Home Building
Assn., supra. I conclude that there is, therefore, a prima facie
case of an 8(a)(5) violation in UBI’s refusal to supply the
requested information.
Respondent’s Affirmative Defenses
1. To the extent Respondent affirmatively defends on the
ground that the Union has never had and does not have a
reasonable belief based on objective evidence that Respond-
ent has been operating a second company (O. Ahlborg &
Sons) as an alter ego, I have found to the contrary, above.
To the extent that Respondent defends on the ground that O.
Ahlborg’s agreement to the creation of UBI constitutes a
waiver of the issue whether O. Ahlborg is an alter ego of
UBI, the defense is not supported by any facts.
2. To the extent that Respondent defends on the ground
that the Board’s dismissal of the substantive assertion (in the
charge) of the existence of an alter ego, on the basis of Sec-
tion 10(b) of the Act, moots the Union’s request for informa-
tion, the Respondent has supported that defense with no cita-
tion of authority. The Board, under the terms of Section
10(b), dismissed only the substantive allegation that O.
Ahlborg & Sons, Inc. was, in law, the alter ego of Respond-
ent. That is a distinctly different issue from, and not nec-
essarily legally related to, the instant issue: whether Re-
spondent is obligated to furnish information to the Union
which, as it threatened, it will or might use (in a forum other
than the National Labor Relations Board) to prove alter ego
status. The most that can be said of the Regional Director’s
dismissal of the first ground in the charge was that the statu-
tory time limitation in Section 10(b) forbade the Regional
Director from passing on the question of the legal alter ego
status of O. Ahlborg & Sons, Inc. Such a limitation and pro-
hibition, however, may not apply in any arbitration process
or other litigative forum into which the Union is threatening
411UNION BUILDERS
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
9 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.’’
to thrust Respondent. I thus reject Respondent’s defense of
mootness based the 10(b) dismissal of the substantive alter
ego section of the charge. To the extent Respondent defends
on the Regional Director’s alternate ground, the most that
can be said is that she determined that agreements of ambig-
uous character do not supply a basis for a statutory violation.
But Respondent can draw little comfort from the Regional
Director’s alternate determination. For the very information
that Respondent refuses to supply may aid the Union in pros-
ecuting (or withdrawing from) its belief in the existence of
an alter ego. That is precisely the underlying rationale in
Acme Industrial Co., supra at 438–439.
3. To the extent Respondent defends on the ground that
Section 10(b) barred the complaint because all the com-
plained—of activity occurred before August 14, 1993, a date
more than 6 months prior to the filing of the charge, I find
the defense to be factually unsupported. The crucial date is
the date upon which the Union demanded the information
(December 8, 1993), not the dates on which the evidence to
support the demand was procured. The February 14, 1994
charge relates to enforcement of a collective-bargaining
agreement which, though executed well outside of the 10(b)
period (June 1992) extends through 1995. It is the enforce-
ment of that contract, in particular, with its prohibition
against subcontracting that is the predicate for the request for
information. The complaint does not allege, nor does the
Union assert, that any act of subcontracting or work perform-
ance violates the Act. That the Union had objective evidence
of contract violation outside of the 10(b) period in no ways
bears upon the relevance of the information requested for the
Union’s current enforcement of the contract within the period
of the present existing collective-bargaining agreement be-
tween Respondent and UBI (1992–1995). The issue is re-
stricted to the Union’s belief in the existence of an alter ego.
If Respondent’s position is that regardless of the objective of
evidence outside the 10(b) period, it has no longer violated
the contract with regard to subcontracting or the awarding of
prevailing rate work, through an alleged alter ego relation-
ship with O. Ahlborg & Sons, Inc., UBI has nevertheless
failed to support such a defense with any evidence.
The resolution of the question concerning the obligation of
Respondent to furnish the Union with information requested
in the questionnaire, in no way passes on the ultimate ques-
tion whether O. Ahlborg & Sons, Inc. is the legal alter ego
of UBI. Respondent, nevertheless, has failed to rebut General
Counsel’s prima facie case regarding the unlawful failure to
supply information on alter ego status. That information was
relevant and necessary to the Union’s policing of the UBI
collective-bargaining contract; the Union had a reasonable
belief that O. Ahlborg, as alter ego, was the beneficiary of
a breach of that contract.
CONCLUSIONS OF LAW
1. The Respondent, Union Builders, Inc., 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. By failing or refusing to provide the Union, in writing,
with the information requested in the Union’s letter and
questionnaire of December 8, 1993, Respondent has unlaw-
fully refused to bargain with the Union and has engaged in,
and is engaging in, unfair labor practices in violation of Sec-
tion 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated Section 8(a)(5)
and (1) of the Act, it is recommended that it cease and desist
therefrom, take the affirmative action of supplying the re-
quested information and the posting of the usual notice.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Union Builders, Inc., West Warwick,
Rhode Island, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively in good faith with Dis-
trict Council 94, United Brotherhood of Carpenters and Join-
ers of America, AFL–CIO (the Union) by refusing to furnish
the Union with the information, in writing, requested in the
Union’s letter and questionnaire of December 8, 1993.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Forthwith furnish the Union with the information re-
quested in its letter and questionnaire of December 8, 1993.
(b) Post at its office and other facilities in West Warwick,
Rhode Island, copies of the attached notice marked ‘‘Appen-
dix.’’9 Copies of the notices on forms provided by the Re-
gional Directorfor Region 1, after being signed by Respond-
ent’s authorized representative, shall be posted by Respond-
ent immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of the Order what steps the Respondent has
taken to comply.
412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain collectively in good faith
with District Council 94, United Brotherhood of Carpenters
and Joiners of America, AFL–CIO (the Union) by refusing
to furnish the Union with the information requested in the
Union’s letter and questionnaire to us of December 3, 1993.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed by Section 7 of the Act.
WE WILL furnish the Union with the information requested
in its letter and questionnaire to us of December 8, 1993.
UNION BUILDERS, INC.