Wachter Construction

National Labor Relations Board - Board Decisions

May 27, 1993

311 N.L.R.B. 215 (N.L.R.B. 1993)

215
311 NLRB No. 26
WACHTER CONSTRUCTION
1 We agree with the judge that the parties must bargain over shar-
ing the costs of producing the requested information, and we leave
this matter to the compliance stage of this proceeding.
2 In their exceptions the Respondents point out that the judge
found that the Union’s requests were directed specifically at sub-
contracts involving asphalt paving work. The Respondents contend
that the judge therefore erred in not limiting the remedy to such sub-
contracts. The Union contends in its brief that its requests were not
limited to asphalt paving. In adopting the judge’s recommended
Order requiring the Respondents to provide the Union with the re-
quested information, we find merit in the Union’s position. The
judge’s finding that the Union was concerned specifically with as-
phalt paving was based on a single letter from the Union to an em-
ployer not involved in this proceeding. We note that the Union’s re-
quests to the Respondents consistently addressed the subcontracting
of ‘‘on-site construction work’’ covered by the collective-bargaining
agreement and did not specify asphalt paving work.
Wachter Construction, Inc. and Local 513, Inter-
national Union of Operating Engineers, AFL–
CIO
BSI Constructors, Inc. and Local 513, International
Union of Operating Engineers, AFL–CIO
Woermann Construction Company and Local 513,
International Union of Operating Engineers,
AFL–CIO
Don C. Musick Construction Company and Local
513, International Union of Operating Engi-
neers, AFL–CIO. Cases 14–CA–21263, 14–CA–
21259, 14–CA–21264, and 14–CA–21257
May 27, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On October 17, 1991, Administrative Law Judge
Claude R. Wolfe issued the attached decision. The Re-
spondents filed exceptions and a supporting brief, and
the Union filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 and to adopt the recommended Order.2
The judge found that the Respondents unlawfully re-
fused to provide the Union requested information per-
taining to the subcontracting of bargaining unit work.
Specifically, the Union requested the following infor-
mation for each subcontract entered into since the May
1, 1989 effective date of the collective-bargaining
agreement that involved covered onsite construction
work within the geographic area covered by the collec-
tive-bargaining agreement: a copy of the subcontract,
from which confidential financial information may be
deleted; a list identifying the job location, the sub-
contractor, the nature of the work, and the starting and
completion dates of the subcontracted work; and pay-
roll records sufficient to show the wages and fringe
benefits of the employees performing the work. In a
second request, the Union also sought, on an ongoing
basis, notification of each jobsite where bargaining unit
work is being performed and a copy of the sub-
contracts, which again need not contain confidential fi-
nancial information. The Respondents furnished some
of the requested information, but declined to provide
data concerning subcontracts outside the 30-day period
prior to the Union’s request (concerning which they as-
serted no grievances could be filed); the actual sub-
contracts (which they contended were voluminous and
irrelevant); and the subcontractor payroll records
(which they stated they did not possess).
We agree with the judge’s conclusion that the Re-
spondents’ refusal violated Section 8(a)(5) and (1) of
the Act for the following reasons. Although the pre-
sumption of relevance does not apply to information
pertaining to employees outside the bargaining unit,
the Union has carried its burden of showing that the
request for information concerning subcontractors
raises ‘‘the probability that the desired information was
relevant’’ and ‘‘of use to the Union in carrying out its
statutory responsibilities.’’ See NLRB v. Acme Indus-
trial Co., 385 U.S. 432, 435–436 (1967). The Union
stated in its requests that its purpose in seeking the in-
formation was to ensure compliance with section 1.08
of the parties’ collective-bargaining agreement. Section
1.08 provides that the Respondents may subcontract
bargaining unit work to ‘‘subcontractors who agree in
writing to pay wages and fringe benefits of monetary
value in aggregate equal to or greater than those pro-
vided in this agreement . . . . In the event the sub-
contractor does not pay wages and fringe benefits in
the aggregate as provided in this Agreement, the Em-
ployer shall terminate the subcontract and remove the
subcontractor from the job site.’’ After receiving re-
ports that other subcontractors were underbidding those
with collective-bargaining agreements with it, the
Union decided to enforce the requirements of section
1.08. We find that the information requested is relevant
to that purpose, and therefore must be provided by the
Respondents.
Contrary to the view of our dissenting colleague, our
Order requires the Respondents to furnish to the Union
all the information sought. We find that the judge’s
reasoning for providing information about subcontracts
prior to 30 days before the Union’s request similarly
undermines our colleague’s 6-month limitation. As the
judge found, information since the effective date of the
parties’ agreement is relevant and useful to the Union’s
determination of the Respondents’ compliance with the
cited provisions, as well as of the frequency of non-
compliance, which may be a significant consideration
for a potential grievance and future bargaining.
216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Safeway Stores, 252 NLRB 1323 (1980), enfd. 691 F.2d 953
(10th Cir. 1982). Additionally, as noted by the judge, the Union
never refused to pay for reasonable costs and the Respondents ini-
tially raised other reasons unrelated to costs for their failure to
produce the requested documents.
4 See also Hawkins Construction Co., 285 NLRB 1313 (1987). We
note that the Eighth Circuit denied enforcement of the Board’s deci-
sion in Hawkins, 857 F.2d 1224 (1988), solely on the basis that the
Board had erred in rejecting the administrative law judge’s factual
finding, based on credibility, that the union’s information request
was made in bad faith. In the instant case, we agree with the judge
that the evidence does not establish bad faith or harassment.
We also note that the judge did not make a finding that the other
union previously involved in this case intended to harass the Re-
spondents in making a similar information request. Although the
judge stated that there was ‘‘reason to believe’’ that the other
union’s efforts were directed at harassing employers, he found that
the conduct of that union was not before him and declined to draw
any conclusions regarding its motives. He did find, however, that the
motives of the other union should not be imputed to the Union here,
and credited testimony that the Union was attempting to enforce the
subcontracting provisions of its agreement with the Respondents.
5 We note that the Board’s decision in Public Service Co. of Colo-
rado, 301 NLRB 238 (1991), does not foreclose this remedy. The
Board did not reject such a remedy in that case, where the issue was
apparently not before it.
With respect to the furnishing of the actual sub-
contracting documents, we find that the Union has ade-
quately demonstrated the relevance of these documents
by reference to section 1.08 of the collective-bargain-
ing agreement. Although the separate letter agreements
pertaining to the payment of union-equivalent wages
and benefits would demonstrate the Respondents’ com-
pliance with the requirement to obtain such agree-
ments, they would not indicate whether the sub-
contracts allow for termination for failure to adhere to
the separate agreements as required by section 1.08, or
allay the Union’s concerns that the agreements had
only been obtained after the fact.
Furthermore, contrary to our colleague, we do not
find that the amount of work involved in satisfying the
Union’s request indicates that the request is either
overbroad or intended to harass the Respondents. In
this regard, it is not uncommon for such requests to in-
volve a large number of documents and to demand a
substantial effort by the employer. The Board has
found that the burden in time and money necessary to
fulfill a request for information is not a basis for refus-
ing the request. Instead, these matters are to be consid-
ered in the compliance stage and, as noted earlier, the
parties must bargain concerning costs. Hence, in the
present case, the issue of cost clearly did not in itself
render the Union’s request overbroad and, without
more, we cannot conclude that it is.3 Accordingly, we
further cannot agree with our dissenting colleague’s
summary finding that the Union’s motivation here was,
at least in part, to harass the Respondents as he relies
for this finding solely on his contrary conclusion that
the request was overly broad. Moreover, the Board has
found that, although an employer need not comply
with an information request where the sole purpose for
the request is to harass the employer, the good-faith re-
quirement will be satisfied where any of the union’s
reasons for seeking the information can be justified. Is-
land Creek Coal, 292 NLRB 480 (1989). We have de-
termined above that the Union sought to enforce its
collective-bargaining agreement with the Respondents,
and we therefore find that its request was made in
good faith.4
With regard to the subcontractor payroll information
requested by the Union, we find that it, like the other
information sought, is relevant to the Union’s intent to
determine if section 1.08 is being properly adminis-
tered by the Respondents and their subcontractors. We
note that section 1.08 provides not only that the Re-
spondents subcontract only with companies that agree
in writing to pay wages and benefits at least equal to
those prescribed by the collective-bargaining agree-
ment, but also that the Respondents shall terminate the
subcontracts of any subcontractor that does not fulfill
its obligations under the agreement. Thus, we agree
with the judge that the Respondents’ responsibilities do
not end with the receipt of a letter agreeing to pay the
appropriate wages and benefits. The requirement to ter-
minate nonconforming subcontracts implies an addi-
tional duty to monitor the wages and benefits actually
paid by subcontractors. In view of this duty, we find
that the Respondents are required to have sufficient ac-
cess to the records of their subcontractors to enable the
Respondents to make these records available to the
Union.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Wachter Construction,
Inc., BSI Constructors, Inc., Woermann Construction
Company, and Don C. Musick Construction Company,
St. Louis, Missouri, their officers, agents, successors,
and assigns, shall take the action set forth in the Order.
MEMBER OVIATT, dissenting in part.
I agree with my colleagues that the Respondents
must provide at least some of the information re-
quested by the Union, subject to bargaining over shar-
ing the costs of producing that information.
I differ with my colleagues and the judge, however,
as to the scope of the information that is required to
be produced. I would require the Respondents to fur-
nish information only for the 6-month period preceding
the filing of the charges herein; I would not require the
disgorgement, in toto, of all subcontracts as requested
by the Union; and I would not require the Respondents
to furnish payroll and other records of independent
companies.
217WACHTER CONSTRUCTION
1 It should also be noted that there is a considerable amount of
work involved for each Employer in locating, retrieving, reviewing,
analyzing, sorting, editing, and copying all the subcontracts de-
manded (ranging from a minimum of some 600 to over 1240 sub-
contracts for each Respondent). Thus, in addition, I would conclude
that the Union’s pursuit of this overly broad request was meant, at
least in part, to harass the Respondents, as the judge found was the
case with the other union originally involved in this proceeding.
1 This consolidated proceeding originally involved 9 separate em-
ployers, 2 unions, and a total of 12 charges. Cases 14–CA–21226
and 14–CA–21115 involving, respectively, Landmark Systems and
G. S. & S. Inc. were severed and settled at hearing. Cases 14–CA–
21117, 14–CA–21190, 14–CA–21206, 14–CA–21207, 14–CA–
21208, and 14–CA–21255, each involving a separate employer and
Laborers’ International Union of North America, AFL–CIO, were in-
dividually severed and settled after the hearing closed.
In Public Service Co. of Colorado, 301 NLRB 238
(1991), the Board ordered the Respondent to ‘‘make
reasonable efforts to obtain’’ information concerning
the wages paid employees by a subcontractor on the
respondent’s premises, in connection with a grievance
filed by the union alleging that the wages paid were
insufficient under the contract. I adhere to the decision
in that case, and it does not in my view support the
Order here. The contract in Public Service provided,
inter alia, that the company could order an audit of the
contractor’s records to determine if the ‘‘[sub]-
contractor’’ was complying. No such contention is
made here. Indeed, in discussing the matter here, the
judge concluded he was ‘‘persuaded Respondents’
have a duty to request records from its subcontractors
. . . to comply with the contract.’’ That, of course, is
not the same as ordering the Respondents to ‘‘provide
[the Union] with copies of the subcontractors’ payroll
records.’’ Nor does it by any stretch of the imagination
justify requiring all the Respondents to turn over their
subcontracts in their entirety. The subcontracts them-
selves, of course, are not presumptively relevant. Thus,
a more precise demonstration of their relevance is re-
quired before any obligation attaches. Island Creek
Coal Co., 292 NLRB 480, 490 (1989), and cases cited.
But no attempt to demonstrate such relevance was
made here. Rather, both in its initial and its second-
round letters to the Respondents, the Union based its
request on section 1.08 of the collective-bargaining
agreement, which provides that nothing in the agree-
ment should be construed to limit the Employer’s right
to subcontract, except that the Employer would not un-
dermine the wage and fringe benefit standards
by subcontracting work that would be otherwise
done by bargaining unit employees . . . except by
subcontractors who agree in writing to pay wages
and fringe benefits of monetary value in aggregate
equal to or greater than those provided in this
agreement.
As quoted by the judge, the Respondents’ letters in an-
swer to the Union noted that it was the Respondents’
custom ‘‘to obtain from subcontractors the written
agreement required by Section 1.08 in the form of a
separate letter rather than as part of the formal sub-
contract documents,’’ and copies of written confirma-
tions by those contractors who did not have their own
contracts directly with the Union were enclosed. This
information, in my view, is all that is required of the
Respondents here. Further, as discussed above, the
Union has not shown the relevance and need for the
additional information it requested (i.e., all the sub-
contracts in their entirety).1
Accordingly, I would require the Respondents here
to furnish the Union with a list of jobsites on which
it subcontracted work covered by its collective-bar-
gaining agreement with the Union for a period begin-
ning 6 months prior to the Union’s filing of a charge
here and, for each such jobsite, the names of the sub-
contractor(s) used by the Respondents, the nature of
the work involved, and the starting and completion
dates of the subcontracted work, together with copies
of any written agreements by the subcontractors ‘‘to
pay wages and fringe benefits of monetary value in ag-
gregate equal to or greater than’’ those provided in the
agreement, as relevant under section 1.08. If a Re-
spondent does not have the written agreement on
wages, I would require it to make reasonable efforts to
obtain and furnish the union with the relevant informa-
tion on wages and fringe benefits, in accord with Pub-
lic Service Co. of Colorado, supra.
Stephen D. Smith, Esq., for the General Counsel.
David G. Millar, Esq., for the Respondent Employers.
Bruce C. Feldacker, Esq., for the Charging Union.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This con-
solidated proceeding1 was litigated before me at St. Louis,
Missouri, on April 15 and 16, 1991, pursuant to charges and
amended charges filed and served on February 20 and March
15, 1991, and a consolidated complaint issued on March 21,
1991. General Counsel alleges that Wachter Construction,
Inc. (Wachter), BSI Constructors, Inc. (BSI), Woermann
Construction Company (Woermann), and Don C. Musick
Construction Company (Musick) (sometimes collectively re-
ferred to as Respondents), have violated Section 8(a)(5) and
(1) of the National Labor Relations Act (the Act) by failing
and refusing to furnish Local 513, International Union of Op-
erating Engineers, AFL–CIO (the Union) with requested in-
formation that is necessary for and relevant to the Union’s
performance of its function as the exclusive collective-bar-
gaining representative of certain of the Respondents’ employ-
ees. Respondents deny the commission of unfair labor prac-
tices.
218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The findings of fact are based on the credible testimony of the
participants and documentary evidence received. I have considered
all the testimony and other evidence of record. In those instances
where conflicts in testimony arise I have considered the reasonable
probabilities, the convincing character of the testimony, and com-
parative demeanor of opposing witnesses. I have credited parts of
witnesses’ testimony while not crediting other parts as appropriate.
NLRB v. Universal Camera Corp., 179 F.2d 749 (2d Cir. 1950), va-
cated on other grounds 340 U.S. 474 (1951).
On the entire record, and after considering the demeanor
of the witnesses and the able posttrial briefs of the parties,
I make the following
FINDINGS OF FACT
I. STATUS OF THE RESPONDENTS
Each of the four Respondents is a Missouri corporation
with offices and place of business in St. Louis, Missouri, and
is engaged as a general contractor in the building and con-
struction industry, constructing commercial facilities. During
the 12-month period ending January 31, 1991, Wachter, BSI,
and Woermann each, in the course and conduct of its busi-
ness operations described above, purchased and received at
its St. Louis, Missouri facility products, goods, and materials
valued in excess of $50,000 directly from points outside the
State of Missouri. During the 12-month period ending De-
cember 31, 1990, Musick, in the course and conduct of its
business operations described above, purchased and received
at its St. Louis, Missouri facility products, goods, and mate-
rials valued in excess of $50,000 directly from points outside
the State of Missouri. Each of these four Respondents is
now, and has been at all times material to this proceeding,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Relationship Between the Parties, the Requests for
Information, and the Responses to the Requests2
All four Respondents are party to a collective-bargaining
agreement between Associated General Contractors of St.
Louis (AGC), a multiemployer group of which they are
members, and the Union. This agreement is applicable to the
Respondents’ employees who work on ‘‘building, heavy and
highway, site preparation, tank farms, mechanical and proc-
essing lines, treatment plants and elevated water towers, as-
phalt plants, dredging construction work, fiber optic projects
and hazardous waste removal’’ (sec. 1.03 of the agreement).
Section 1.08 of this agreement reads, in relevant part:
Nothing in this Article shall be construed to limit or
restrict, in any way, the Employer’s right to determine
which portions of the work, if any, the Employer may
perform with the Employer’s own employees or may
subcontract to others.
The Employer shall not undermine the wage and
fringe benefit standards established by this agreement
by subcontracting work that would be otherwise done
by bargaining unit employees at a construction job site
for performance except by subcontractors who agree in
writing to pay wages and fringe benefits of monetary
value in aggregate equal to or greater than those pro-
vided in this agreement.
In the event the subcontractor does not pay wages
and fringe benefits in the aggregate as provided in this
Agreement, the Employer shall terminate the sub-
contract and remove the subcontractor from the job site.
It is understood and agreed that this subcontractor
clause requires said subcontractor to abide by and be
bound by the terms and provisions of this collective
bargaining agreement only for the period and on the
project where the subcontractor relationship exists.
The Union, by its president and business manager Jack
Sawyer, sent the following letter to Wachter on October 5,
1990, and identical letters to Musick on October 31, 1990,
and to BSI and Woermann on December 10, 1990:
RE: Enforcement of Section 1.08 of the Collective Bar-
gaining Agreement between the Associated General
Contractors of St. Louis and the International Union
of Operating Engineers Local No. 513.
As you know, you are a party to the above collective
bargaining agreement.
Section 1.08 of the agreement permits subcontracting
of operators work provided certain conditions are met
by the subcontractor. In order to ensure compliance and
properly enforce Section 1.08, this is to request that
you provide me with a copy of all agreements in which
you have subcontracted covered on-site construction
work to any other contractor within the geographic area
covered by the contract since May 1, 1989. You may
delete any confidential financial information from the
information provided.
Also, please provide a list of each job for which you
have provided a subcontract as requested. As to each
subcontract: (1) identify the location, (2) state the name
of the subcontractor, the nature of the project and of
work subcontracted, and (3) state the date the subcon-
tracted work began and was completed or is to be com-
pleted.
Finally, as to each subcontractor during the period
covered by this information request, please provide us
with copies of the subcontractors’ payroll records for
the employees performing covered operators work. This
request includes all records needed to verify all wages,
fringe benefit contributions, or other payments of any
kind to employees to ensure compliance with section
1.08. If you so desire, you may made arrangements for
us to independently audit such records ourselves rather
than obtaining and forwarding the records to us.
Please provide the requested copies of subcontract
agreements and payroll records with ten (10) days. If
you need additional time, or have any questions about
the information requested, please feel free to contact
me. Otherwise, I will expect the information within the
requested time. Thank you for your cooperation in this
matter.
219WACHTER CONSTRUCTION
This letter was again mailed to Wachter by Sawyer on
January 18, 1991, together with a new letter set forth below.
These two documents were also mailed by Sawyer to
Woermann on January 16, 1991, to Musick on January 21,
1991, and to BSI on January 17, 1991. Another copy of the
document set forth below had been previously directed to
BSI on December 11, 1990:
RE: Compliance with Section 1.08 of Operating Engi-
neers Local 513 Collective Bargaining Agreement
Dear Sir:
As you know, Section 1.08 of the collective bargain-
ing agreement between the Associated General Contrac-
tors of St. Louis and the International Union of Operat-
ing Engineers Local 513 provides that a covered em-
ployer, such as your company, ‘‘will not subcontract on
site construction work requiring operators for work cov-
ered hereunder except to subcontractors who agree in
writing to pay to, provide for, their employees so en-
gaged, wages and fringe benefits no less than those
specified in this Agreement . . . .’’
In order to properly administer the contract, and in
order to assure your company’s compliance with Sec-
tion 1.08, this is to request that your company hence-
forth provide the Union with a copy of each subcontract
that your company makes for the subcontracting of on
site construction work requiring operators for work cov-
ered by the contract. Please provide this requested in-
formation from this date forward for each subcontract
on each work site on a continuing basis within five (5)
days after the subcontract is entered into. You may de-
lete confidential financial information from the docu-
ments provided, but we should otherwise be provided
with complete copies of the subcontracts so that we
may verify their compliance with Section 1.08. This re-
quest is in addition to any request previously made to
your company for information on past subcontracts.
Also, so that the Union may administer and enforce
its collective bargaining agreement with you more effi-
ciently and effectively, this is to request that, from this
date forward, your company notify the Union as to each
job site on which you are performing work within the
area covered by the collective bargaining agreement.
This information should be provided within five (5)
days after the contract for the work is executed by your
Company. This information is needed so that we can
check the job site for compliance with the contract, in-
cluding, but not limited to, verification that all laborers
work is either performed by your company or properly
subcontracted.
If you fail to provide the required documentation and
information to us on an ongoing basis, and the Union
should independently uncover a violation of Section
1.08, the Union will deem the failure as a waiver of the
thirty-day limit on the retroactivity of an arbitrator’s
award under Section 10.01 of our collective bargaining
agreement to the extent that Section might otherwise ar-
guably apply.
Please respond to this letter within seven days indict-
ing your agreement to providing the requested docu-
ments and information. If you do not promptly reply,
we will presume that you are not wiling to provide the
information as requested and will take appropriate legal
steps to enforce our rights.
If you have any questions about the information re-
quested or the procedures to follow in providing it, or
any difficulty with the time requirements I have pro-
posed, please feel free to contact me. We are willing
to cooperate so that you can provide the information
which we need with as little inconvenience to your op-
erations as is reasonably possible. Thank you for your
cooperation.
The Respondents furnished some of the information re-
quested, but declined to furnish the remainder. BSI’s letter
of March 6, 1991, directed to the Union, with the exception
of the dates referenced and the recitation of information list-
ed as provided in the second paragraph of the letter, is for
all practical purposes identical to the letters sent the Union
by Wachter, Woermann, and Musick on March 5, January 22
and 25, 1991, respectively. BSI’s letter reads as follows:
The purpose of this letter is to restate in greater de-
tail the position of BSI in response to the requests for
information contained in your letters dated December
10, 1990 and December 11, 1990, which were post-
marked in January and received by us on January 10,
1991, and your letters dated January 17, 1991.
On February 5, 1991, we sent you our sub-supplier
lists for all projects of BSI on which subcontracts rel-
evant to your inquiry were in progress on and after De-
cember 9, 1990. The lists identified, for each project,
the nature of the project; its location; the names of our
subcontractors, including those whose work included, in
full or part, work which we understand to be within the
jurisdictional claims of your Union; and the nature of
the subcontracted work. Although it may not be rel-
evant to your inquiry, the lists included, in some cases,
subcontracted work which our company never would
perform with its own employees. Please note that the
firms named on the list for the Missouri Botanical Gar-
dens project are not actually subcontractors of BSI, as
we are construction manager only on this project and
have no contracts with the other firms listed.
Your letters requested that our list of projects cover
the time period from May 1, 1989 to date, in order to
assist in enforcement of section 1.08 of our collective
bargaining agreement with your Union. It would have
been extremely burdensome and time consuming for us
to have researched and collected the relevant informa-
tion from May 1, 1989. We note that under section
10.01 of our contract, a contract grievance cannot be
enforced by an arbitration award for more than thirty
days prior to date of filing a written complaint with
BSI. Accordingly, we believe that information relating
to events more than thirty days prior to our receipt of
your first letters on January 10, 1991 would be irrele-
vant to enforcement of section 1.08. For that reason, the
lists we furnished covered the period beginning Decem-
ber 9, 1990.
Your letters requested copies of our subcontract
agreements relevant to enforcement of section 1.08. It
is our understanding that all subcontractors on our lists,
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Wachter furnished copies of subcontracts and one subcontractor’s
payroll.
4 See, e.g., Island Creek Coal Co., 292 NLRB 481, 490 fn. 18
(1989), and cases referred to therein.
5 A. S. Steel Co., 230 NLRB 1112, 1113 (1977); NLRB v. Acme
Industrial Co., 385 U.S. 432 (1967); W. B. Skinner, Inc., 283 NLRB
989, 990 (1987); Wabeek Country Club, 301 NLRB 694 (1991).
6 Emphasis added.
7 See NLRB v. Acme Industrial Co., supra; General Motors Corp.
v. NLRB, 700 F.2d 1083, 1088 (6th Cir. 1983).
8 Island Creek Coal Co., 292 NLRB 480, 489 (1989).
except Byrne & Jones Paving Company and Leritz
Contracting, Inc., that utilize Operating Engineers have
their own contracts directly with your Union; therefore,
only our subcontracts with Byrne & Jones and Leritz
are relevant to enforcement of section 1.08. It has been
our custom to obtain from subcontractors the written
agreement required by section 1.08 in the form of a
separate letter, rather than as part of the formal sub-
contract documents. Accordingly, we provided you with
a copy of a written confirmation of agreement by Byrne
& Jones Paving Company and enclose herewith the
similar confirmation by Leritz to pay wages and fringe
benefits as specified therein, which satisfies the obliga-
tions of BSI under section 1.08 of our contract with
your Union. For the reasons explained above, we have
not furnished copies of the complete subcontract docu-
ments with Byrne & Jones and Leritz, which are not
relevant or necessary to the purpose identified in your
letter, and in addition are voluminous and contain sen-
sitive cost and other confidential competitive informa-
tion which would require careful review by executives
of the company to identify and excise.
If there are additional reasons, unknown to us at
present, why subcontract information prior to December
9, 1990, or complete subcontract documents, or both
are needed for the Union’s legitimate representational
functions, we would be willing to furnish such addi-
tional information, provided that the Union would agree
to pay our costs incurred to identify, retrieve, review
and copy such information from available records,
which will require substantial time of both clerical and
executive employees.
Your letters also requested information concerning
our subcontractors’ payroll records. BSI does not have
such information in its possession, and is therefore un-
able to comply with this request.
Finally, your letters made a continuing request, un-
limited in time, for a copy of every subcontract let by
BSI in the future that involves Operating Engineer
work, and for notification to the Union within five days
of every construction contract entered into by BSI in
the future, irrespective of whether any Operating Engi-
neers’ work is involved and irrespective of whether any
work is subcontracted. We believe that such an open-
ended request for future information exceeds any obli-
gation BSI may have, especially since it has no dem-
onstrated relevance to any identified contract violation
or grievance, no collective bargaining is now in
progress between BSI and Local 513, and our existing
contract with the Union will not expire until May 1,
1992. We do not agree that failure to provide such fu-
ture information on an outgoing basis will constitute a
waiver of the thirty-day limitation of section 10.01 of
our contract.
The foregoing exchanges between the Union and the Re-
spondents resulted in the furnishing of some information and
a rejection of the Union’s requests to the extent they asked
for (1) information covering a period more than 30 days
prior to the requests, (2) subcontractors’ payroll records not
in the Respondents’ possession, (3) the actual subcontracts,3
and (4) the furnishing of subcontracting information on a
continuing basis.
B. Discussion
Information concerning subcontracting of work performed
by members of the bargaining unit is relevant to a union’s
performance as the representative of unit employees,4 and it
is settled that information relating to one or more provisions
of an existing collective-bargaining agreement is ‘‘informa-
tion that is demonstrably necessary to the [Union] if it is to
perform its duty to enforce the agreement and to prepare for
possible future negotiations.’’5 Here both situations are
present. The information sought relates to section 1.08 of the
agreement, and, notwithstanding the uncontroverted and cred-
ible testimony that Respondents have not historically and do
not now perform paving work with its own employees, sec-
tions 1.03, 5.06, 17.03, and 17.04, as well as 1.08, show that
the agreement establishes employee entitlement to paving
work and the applicable wage rates therefor in the absence
of subcontracting. That the Union’s requests for information
are indeed directed at the subcontracting of paving work is
made clear by the following statement of the Union’s presi-
dent Sawyer, in his January 23, 1991 letter to Korte Con-
struction, to whom similar request letters had been directed:
In your letter to me . . . you go on and on about
electrical, mechanical, heating, and air conditioning
subcontractors and I have no idea what you are talking
about. It should be clear to you we are concerned
about Paving contractors not these others.6
Under the Board’s liberal discovery-type standard,7 all the
information requested by the Union is probably relevant to
the Union’s efforts to assure that the subcontracting provi-
sions in the collective-bargaining agreement are being com-
plied with when paving work is contracted out.
Respondents protest that the requests for information were
not made in good faith, but were designed to harass Re-
spondents into placing all their paving work with unionized
paving contractors who are party to a collective-bargaining
agreement between the Union and the Bituminous Paving
Contractors Association (Paving Contractors). An employer
is not required to furnish requested information if the sole
reason for the request is harassment, but a union may satisfy
the good-faith requirement if at least one reason for the re-
quest can be justified.8 In support of Respondent’s bad-faith
contention, the record shows that similar requests for infor-
mation with identical letters used were initiated by Myrl
Taylor, secretary-treasurer of the Eastern Missouri Laborers’
District Council, Laborers’ International Union of North
221WACHTER CONSTRUCTION
9 Island Creek Coal Co., supra.
10 W. L. Molding Co., 272 NLRB 1239, 1240 (1984), quoting
Boyers Construction Co., 267 NLRB 227, 229 (1983).
11 NLRB v. Acme Industrial Co., supra at 437.
12 Hawkins Construction Co., 285 NLRB 1313 (1987), enf. denied
on other grounds 857 F.2d 1224 (8th Cir. 1988).
America (Laborers) which is also a party to an AGC agree-
ment binding on Respondents, and an agreement with Paving
Contractors. The testimony and letters of Taylor show that
he, in the fall of 1990, embarked on a course of action de-
signed to force the AGC members to subcontract only to
unionized employers. Although Taylor contends his efforts
were directed at all nonunion subcontracting, his writings
show his real concern was asphalt paving subcontracting. He
prepared model request letters, and mailed copies to all 31
unions in the Building Trades Council. It does not appear
that any union except the Union and the Laborers used the
letters, of which those set forth hereinabove are copies ad-
justed for the Union’s use, nor does it appear that any of the
other unions made similar requests. The conduct of the La-
borers is not before me, and the references to Taylor’s efforts
are only introduced as background against which to assess
Sawyer’s conduct. Although there is reason to believe Tay-
lor’s efforts were really directed at harassing employers into
giving their paving work to unionized contractors, his mo-
tives, whatever they were, may not be lightly imputed to
Sawyer. Although Sawyer, like Taylor, was concerned about
the subcontracting of asphalt paving, Respondents have not
carried their burden9 of proving Sawyer’s requests for infor-
mation were made in bad faith. Moreover, although Sawyer
did not testify, Walter Arnette, the Union’s business rep-
resentative, credibly testified the Union perceived a need to
enforce the subcontracting provision of the collective-bar-
gaining agreement because it had received quite a few com-
plaints from unionized paving contractors that nonunion sub-
contractors were not paying the union scale. This, I find, was
sufficient reason, given the 1.08 requirement that subcontrac-
tors agree to pay wages and fringe benefits in the aggregate
equal to or greater than those in the agreement, and the set-
tled principle that a bargaining agent is not required to show
that the information giving rise to its request is ‘‘accurate,
non hearsay, or even ultimately unreliable,’’10 for the Union
to request information relative to whether this requirement
was being complied with. Accordingly, I conclude there was
a justifiable reason for the requests which were therefore
made in good faith.
In addition to its bad-faith claim, which I have rejected,
Respondent raises other affirmative defenses. Respondent ar-
gues the Union’s asserted objective of contract enforcement
would violate Section 8(e) of the Act because the Union has
no existing collective-bargaining relationship with Respond-
ents covering the employees who will perform subcontracted
work, citing Connell Construction Co. v. Plumbers, 421 U.S.
616 (1975). This argument has no merit. The agreement’s
provisions for the use of unit employees in asphalt plants
(secs. 1.03, 8.21, 17.03), for paving (sec. 5.06), for operating
asphalt rollers (sec. 17.03), and for asphalt mixing (sec.
17.04) are sufficient to show that unit employees are entitled
to perform asphalt paving work if it is not subcontracted out
pursuant to section 1.08 which conditions the subcontracting
on the maintenance of wages and fringe benefits by the sub-
contractor at least as good, in the aggregate, as those estab-
lished in the collective-bargaining agreement. In short, the
agreement only permits the subcontracting of asphalt paving,
which would otherwise be done by unit employees, on condi-
tion that unit employees’ wage and benefit standards will not
be undermined by the subcontracting. That Respondents have
always elected to utilize subcontractors rather than their own
employees for asphalt paving does not change the simple fact
it is unit work with agreed wage scales therefor that is being
contracted out. Connell, which dealt with a bare subcontract-
ing agreement rather than a complete collective-bargaining
contract and relationship, is not applicable to the situation
before me.
The contention that the Union has failed to demonstrate
the relevance of the disputed information, and therefore Re-
spondents have no duty to supply it is rejected. There need
only be a probability that the information requested is rel-
evant11 and the requests on their face show the Union was
seeking the information for contract enforcement purposes,
citing the appropriate contractual section. This is sufficient to
effect the broad discovery to which the Union is entitled.
The argument that Respondents have no duty to produce
because the Union refused to negotiate payment of the costs
of production is not impressive because it is clear the issue
of costs is not a determining factor in Respondents’ refusal
to produce. The Union has not refused to pay reasonable
costs, and Respondents cannot be heard to say they will not
produce because they do not have to for various reasons un-
related to costs and then contend the Union will not negotiate
over the costs of producing that which they will not for other
reasons produce. In any event, the question of costs can be
resolved by the parties through good-faith bargaining.
With respect to Respondents’ argument that it need not
furnish information covering a period more than 30 days
prior to the Union’s request because the collective-bargaining
agreement provides arbitration awards shall not be retroactive
for more than 30 days from the filing of the complaint, I am
persuaded the provision of information prior to the 30 days
is required. The Union is entitled to know whether there has
been a long-term pattern of noncompliance with the con-
tract’s provisions concerning subcontracting, or whether any
noncompliance was minimal and/or isolated so as not to war-
rant a grievance or future bargaining on the matter. The
Union’s request for information concerning subcontracting
commencing May 1, 1989, the effective date of the collec-
tive-bargaining agreement, should answer these questions.
The Board has ordered an employer to furnish a list of sub-
contractors, the subcontracting agreement, and the wages and
fringes paid on the employer’s project for 4 years prior to
the Union’s request for information to aid in administering
a collective-bargaining agreement,12 and I therefore do not
consider the request in this proceeding for information less
than 2 years old to be unreasonable.
Turning from the provision of information on past sub-
contracting to the provision of future information on the sub-
ject, the furnishing of information on a continuing basis
would enable the Union to monitor subcontractor compliance
with section 1.08, which is an express condition of obtaining
and retaining a subcontract with any of the Respondents who
have an obvious duty to exert efforts to ensure that the con-
tract to which they are a party is complied with. The Re-
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 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.
14 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.’’
spondents’ duty does not end with the receipt of the sub-
contractor’s written agreement to pay the appropriate wages
and fringe benefits. That promise must be kept. Respondents
cannot merely assume it is being kept, but must monitor
compliance with the promise in order to know if and when
it is required to exercise its contractual mandate to terminate
subcontracts as set forth in section 1.08. Fairly read, section
1.08 requires the Respondents to monitor subcontractors’
compliance with its terms on a continuing basis and to obtain
the subcontractors’ payroll and other records necessary to
that oversight when the need arises. The Union, the other
party to the collective-bargaining agreement, is equally enti-
tled to such information. The fact that subcontractors may be
reluctant to furnish such information to the general contractor
is not a valid reason for Respondents’ refusal to obtain such
information because a refusal by a subcontractor to show it
is complying with section 1.08 would be ample justification
for terminating that subcontract. I do not believe that many,
if any, subcontractors would choose to refuse its records to
Respondents and thus risk termination of the subcontract. In
sum, I am persuaded Respondents have a duty to request
records from their subcontractors to carry out the obligation
to comply with the contract by not retaining subcontractors
who do not comply with the requirements of section 1.08
that they pay certain wages and fringe benefits. On receipt
of those records Respondents have a further duty to furnish
them to the Union on request and on a continuing basis.
To the extent Respondents are concerned that production
might be burdensome, there would be considerable costs in-
volved, and certain confidential data ought not be given to
the Union, those concerns can be alleviated by good-faith ne-
gotiations between the Union and Respondents concerning
the deletion of truly confidential material and the equitable
allocation of costs incurred in securing, copying, and furnish-
ing the documents requested.
CONCLUSIONS OF LAW
1. Each of the Respondents 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 refusing to furnish the Union with requested infor-
mation that is relevant to administering the Union’s collec-
tive-bargaining agreement with Respondents, the Respond-
ents have each violated Section 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
In addition to the usual notice posting and cease and desist
requirements, I shall recommend Respondents be required to
furnish the Union with the information requested, with any
concerns about confidentiality or the allocation of costs to be
resolved by good-faith bargaining between the parties.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
Each of the Respondents, Wachter Construction, Inc., BSI
Constructors, Inc., Woermann Construction Company, and
Don C. Musick Construction Company, St. Louis, Missouri,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to furnish the Union with requested informa-
tion that is relevant to administering the collective-bargaining
agreement between Respondents and the Union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Furnish the Union with the information it requested by
letters to Wachter on October 5, 1990, and January 18, 1991;
to Musick on October 31, 1990, and January 21, 1991; to
BSI on December 10 and 11, 1990, and January 17, 1991;
and to Woermann on December 10, 1990, and January 16,
1991.
(b) Post at its facility in St. Louis, Missouri, copies of the
attached notices marked ‘‘Appendixes A, B, C, and D.’’14
Copies of the notice, on forms provided by the Regional Di-
rector for Region 14, 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) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX A
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 with Local
513, International Union of Operating Engineers, AFL–CIO
by refusing to furnish the Union with requested information
that is relevant to administering the collective-bargaining
agreement between us and the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
223WACHTER CONSTRUCTION
WE WILL furnish the Union with the information relating
to subcontracting which it has requested from us.
WACHTER CONSTRUCTION, INC.
APPENDIX B
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 with Local
513, International Union of Operating Engineers, AFL–CIO
by refusing to furnish the Union with requested information
that is relevant to administering the collective-bargaining
agreement between us and the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL furnish the Union with the information relating
to subcontracting which it has requested from us.
BSI CONSTRUCTORS, INC.
APPENDIX C
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 with Local
513, International Union of Operating Engineers, AFL–CIO
by refusing to furnish the Union with requested information
that is relevant to administering the collective-bargaining
agreement between us and the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL furnish the Union with the information relating
to subcontracting which it has requested from us.
WOERMANN CONSTRUCTION COMPANY
APPENDIX D
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 with Local
513, International Union of Operating Engineers, AFL–CIO
by refusing to furnish the Union with requested information
that is relevant to administering the collective-bargaining
agreement between us and the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL furnish the Union with the information relating
to subcontracting which it has requested from us.
DON C. MUSICK CONSTRUCTION COMPANY