Walter N. Yoder & Sons

National Labor Relations Board - Board Decisions

May 15, 1984

270 N.L.R.B. 652 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walter N. Yoder & Sons, Inc. and Sheet Metal
Workers International Association, Local Union
100. Case 5-CA-14306
15 May 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 29 November 1982 Administrative Law
Judge Sidney J. Barban issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed 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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge concluded that the Respondent violat-
ed Section 8(a)(5) and (1) of the Act by refusing to
give the Union 14 items of information requested in
the Union's 25 March 1982 letter concerning the
Respondent's relationship and dealing with Poto-
mac so that the Union could determine whether
the Respondent might be conducting a "double-
breasted" operation. As the judge noted, however,
I In sec. I,b, par. 5 of his decision, the judge inadvertently stated that,
on 19 April 1982, union business agent Drake met with Walter N. Yoder,
the Respondent's president, and with the shop steward for Local 102 at
the Respondent's premises. The record indicates that on that date Drake
met with John W. Yoder, the Respondent's secretary/treasurer, and with
Artie Dolly, the shop steward for Local 100. We hereby correct these
errors.
The judge, in finding that the Respondent "had information justifying a
good faith conclusion that the Respondent might be conducting a double-
breasted operation," noted that the Union had received information from
an agent in Cumberland, Maryland, that the Respondent was operating
Potomac Metal and Supply, Inc. (Potomac), that Potomac was the same
company as the Respondent, and that employees of the Respondent were
operating equipment at Potomac's facilities. We note that similar informa-
tion was provided to the Union by Brad Whetstone and Emmit Heiple,
the Union's former business managers; by John Goldsworthy, the Union's
former president; by Artie Dolly, the Union's shop steward at the Re-
spondent; and by Billy Hunter, the Respondent's superintendent and a
member of the Union. The Union thus formed its belief that the Respond-
ent might be conducting a double-breasted operation after receiving all
this information and securing reports from the Maryland State Depart-
ment of Assessments and Taxation showing marked similarities in both
companies' officers, directors, and business purposes.
2 A "double-breasted" operation is one in which a contractor operates
two companies, one unionized and the other nonunionized. Depending on
how the companies are structured and operated, each may be a separate
corporation or else both may be so interrelated that they constitute a
single employer or one may be the alter ego of the other. A collective-
bargaining contract signed by one of the companies would not bind the
other if each were a separate corporation, but would bind the other if
both constituted a single employer and the employees of both companies
constitute a single appropriate bargaining unit or the nonsignatory com-
pany is an alter ego of the signatory company. Associated General Con-
tractors of California, 242 NLRB 891, 892 fn. 5 (1979), enfd. as modified
633 F.2d 766 (9th Cir. 1980), cert. denied 452 U.S. 915 (1981); Burgess
Construction, 227 NLRB 765, 770-771, 773-774 (1977), enfd. 596 F.2d 378
270 NLRB No. 104
the Respondent provided the information requested
in item 5 and in the first part of item 6 in a letter
dated April 1982 the Respondent sent to the
Union. 3 While the judge also noted that the Re-
spondent "may have later, orally, answered an-
other [item 10]," the evidence establishes that the
Respondent fully answered item 10 at a 19 April
1982 meeting between the Respondent and the
Union.4 We shall accordingly issue new conclu-
sions of law, an amended remedy, and a new Order
and notice to employees reflecting that the Re-
spondent did provide the information the Union re-
quested in items 5 and 10 and the first part of item
6 in its 25 March 1982 letter, and is required to
provide only the remaining items of information
the Union requested in that letter.5
CONCLUSIONS OF LAW
By refusing to give the Union the information re-
quested by items I through 4, 7 through 9, 11
through 14, and the second part of item 6 of the
Union's letter to the Respondent dated 25 March
1982, the Company has engaged in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the Act.
(9th Cir. 1979), cert. denied, 444 U.S. 940 (1979); George C. Shearer Ex-
hibitors Delivery Service, 262 NLRB 622, 623-624 (1982), enfd. mem. 114
LRRM 2976 (3d Cir. 1983).
3 In fact, the complaint alleged, and the answer admits that the Re-
spondent answered item 5 and the first part of item 6 in its 5 April 1982
letter.
4 On 19 April 1982 John W. Yoder spent several hours explaining to
Richard Drake how the type of business engaged in by the Respondent
was different from that of Potomac. In essence, Yoder stated that the
sheet metal work performed by the Respondent, a multiple craft con-
struction firm, consisted of heating, ventilating, and air-conditioning
work, while Potomac, a manufacturing firm, fabricated water screens,
waste treatment equipment, and related items. Yoder further asserted that
Potomac used a gauge of metal in its operations that was outside of the
Union's jurisdiction.
s In affirming the judge's decision, Chairman Dotson and Member
Dennis do not rely on any implication in Associated General Contractors of
California, supra, 242 NLRB at 893; and Leonard B. Hebert, Jr., & Co.,
259 NLRB 881, 886 (1981), enfd. 696 F.2d 1120 (5th Cir. 1983), cert.
denied 114 LRRM 2567, 104 S.Ct. 76 (1983), that the information the
Union sought in this case would be presumptively relevant because it en-
ables the Union to evaluate whether Potomac's operations are so interre-
lated with the Respondent's operations that Potomac's employees should
be included in the same bargaining unit. Instead, they find that a union
must demonstrate reasonable or probable relevance whenever the re-
quested information ostensibly relates to employees outside the represent-
ed bargaining unit even though the information may show ultimately that
the employees are part of the bargaining unit because of the existence of
a single employer or an alter ego relationship.
Member Zimmerman does not find that Associated General Contractors
and Leonard B. Hebert, Jr., imply that the information the Union sought
here is presumptively relevant without the Union first having to demon-
strate its relevance. To the contrary, both cases make clear that a union
must establish a good-faith belief that employees may have been excluded
improperly from the bargaining unit in order to demonstrate the "reason-
able or probable relevance" of the information requested. See Leonard B.
Hebert, Jr. at 884-886.
652
WALTER N. YODER & SONS
AMENDED REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order it
to cease and desist, and to furnish the Union in
writing the information requested by items 1
through 4, 7 through 9, 11 through 14, and the
second part of item 6 of the Union's letter to the
Respondent dated 25 March 1982.
ORDER
The National Labor Relations Board orders that
the Respondent, Walter N. Yoder & Sons, Inc.,
Cumberland, Maryland, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Sheet
Metal Workers International Association, Local
Union 100 as the exclusive bargaining representa-
tive of the employees in the following appropriate
unit, by refusing to furnish the Union the informa-
tion requested by items 1 through 4, 7 through 9,
11 through 14, and the second part of item 6 of the
Union's letter to the Respondent dated 25 March
1982:
All employees of Walter N. Yoder & Sons,
Inc. engaged in but not limited to the (a) man-
ufacture, fabrication, assembling, handling,
erection, installation, dismantling, conditioning,
adjustment, alteration, repairing and servicing
of all ferrous or nonferrous metal work and all
other materials used in lieu thereof and of all
air-veyor systems and air handling systems re-
gardless of material used including the setting
of all equipment and all reinforcements in con-
nection therewith (b) all lagging over insula-
tion and all duct lining; (c) testing and balanc-
ing of all air-handling equipment and duct
work; (d) the preparation of all shop and field
sketches used in fabrication and erection, in-
cluding those taken from original architectural
and engineering drawings or sketches, and (e)
all other work included in the jurisdictional
claims of Sheet Metal Workers' International
Association.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, furnish to the Union in writing
the information requested by items 1 through 4, 7
through 9, 11 through 14, and the second part of
item 6 of the Union's letter to the Respondent
dated 25 March 1982.
(b) Post at its facility in Cumberland, Maryland,
copies of the attached notice marked "Appendix." 6
Copies of the notice, on forms provided by the Re-
gional Director for Region 5, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able 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.
6 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al 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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
Sheet Metal Workers International Association,
Local Union 100 as the exclusive bargaining repre-
sentative of our employees in the following appro-
priate unit, by refusing to furnish the Union those
items of information requested in its 25 March 1982
letter not previously furnished by us:
All employees of Walter N. Yoder & Sons,
Inc. engaged in but not limited to the (a) man-
ufacture, fabrication, assembling, handling,
erection, installation, dismantling, conditioning,
adjustment, alteration, repairing and servicing
of all ferrous or nonferrous metal work and all
other materials used in lieu thereof and of all
air-veyor systems and air handling systems re-
gardless of material used including the setting
of all equipment and all reinforcements in con-
nection therewith (b) all lagging over insula-
tion and all duct lining; (c) testing and balanc-
ing of all air-handling equipment and duct
work; (d) the preparation of all shop and field
sketches used in fabrication and erection, in-
cluding those taken from original architectural
and engineering drawings or sketches, and (e)
653
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all other work included in the jurisdictional
claims of Sheet Metal Workers' International
Association.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, furnish the Union the in-
formation requested in its 25 March 1982 letter, not
previously furnished by us, that is relevant and
necessary to its role as the exclusive bargaining
representative of our employees in the bargaining
unit.
WALTER N. YODER & SONS, INC.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge. This
matter was heard at Baltimore, Maryland, on September
17, 1982 (all dates herein are in 1982, unless otherwise
noted), on a complaint issued on June 16, as amended,
based on a charge filed by the above-named Charging
Party on April 30. The complaint alleges that the Re-
spondent violated Section 8(a)(1) and (5) of the National
Labor Relations Act (the Act), by failing and refusing to
furnish the Union with certain information requested by
the Union on or about March 25, which information is
alleged to be necessary for and relevant to the Union's
performance of its function as the exclusive collective-
bargaining representative of Respondent's employees in
an appropriate unit. The answer denies the unfair labor
practices alleged, but admits allegations of the complaint
sufficient to justify the assertion of jurisdiction under the
Board's current standards (Respondent, with an office
and place of business at Cumberland, Maryland, while
engaged in various phases of construction, including the
fabrication and installation of sheet metal work, in a
recent annual period provided services valued in excess
of $50,000 directly to points located outside the State of
Maryland), and to support a finding that the above-
named Charging Party is a labor organization within the
meaning of the Act.
Upon the entire record in this case,' from observation
of the witnesses, and after due consideration of the brief
filed by the Respondent and argument made at the hear-
ing, I make the following
FINDINGS AND CONCLUSIONS
I. THE FACTS
A. Introduction
The business involved in this proceeding was begun by
Walter Yoder in 1945. Respondent was incorporated in
1957. Walter Yoder and Respondent have recognized the
I The motions of the General Counsel and of Respondent to correct
the transcript are granted.
Union, or its predecessor locals2 since 1954 as the collec-
tive-bargaining representative of the sheet metal workers
employed by Walter Yoder and Respondent.3
B. The Requests for Information
In mid-1981, Richard Drake, then business agent of
Local 102 and now president and business agent of Local
100, received information from an agent of the Union in
Cumberland, where Respondent is located, that Re-
spondent was "operating another company," that "it was
the same as [Respondent], and that Respondent's employ-
ees, union members, had been used to operate equipment
at the second company, Potomac Metal and Supply Inc.
(herein Potomac), which was not complying with the
Union contract then in effect. Drake thereupon secured
from the Maryland State Department of Assessments and
Taxation reports filed by Respondent and Potomac
which revealed that Respondent was incorporated Octo-
ber 1, 1957; engaged in the business of plumbing and
heating; located on Rt. 6, McMullen Highway,
Alleghany County; with Walter N. Yoder as president
and John W. Yoder as secretary and treasurer, and with
Walter N. Yoder, John W. Yoder, and Harold Hammond
as directors; and that Potomac was incorporated April 1,
1970; engaged in the business of plumbing-sheet metal;4
located at Oldtown Road Mexico Farms in Alleghany
County; with the same officers and directors as Respond-
ent.
On March 25, Drake wrote Respondent, in pertinent
part, as follows:
In order to enable Sheet Metal Workers' Local 102
to fully apply and enforce the terms of its collective
bargaining agreement with Walter A. [sic) Yoder
and Sons, Inc., and to serve in its capacity as bar-
gaining agent of the sheet metal workers employed
2 It appears that originally the bargaining agreement between the par-
ties was administered by Local 447, which is no longer in existence. It
was succeeded by Local 102 which on or about April I became merged
into Local 100 which is recognized as the successor to Local 102. These
Locals will be referred to herein without distinction as "the Union."
I The only bargaining agreement put in evidence to which the Union
and Respondent are parties by its terms runs from May 1, 1982, through
April 30, 1984. This agreement, which was negotiated for Respondent by
a multiemployer association (Western Maryland Mechanical Contractors
Assn.) "covers the rates of pay, and conditions of employment of all em-
ployees of the [Respondent] engaged in . . . the (a) manufacture, fabrica-
tion, assembling, handling, erection, installation, dismantling, condition-
ing, adjustment, alteration, repairing and servicing of all ferrous of non-
ferrous metal work and all other materials used in lieu thereof and of all
air-veyor systems and air handling systems regardless of material used in-
cluding the setting of all equipment and all reinforcements in connection
therewith (b) all lagging over insulation and all duct lining; (c) testing
and balancing of all air-handling euipment [sic] and duct work; (d) the
preparation of all shop and field sketches used in fabrication and erection,
including those taken from original architectural and engineering draw-
ings or sketches, and (e) all other work included in the jurisdictional
claims of Sheet Metals Workers' International Association." I find that
his constitutes an appropriate unit for the purposes of collective bargain-
ing within the meaning of the Act. On the record as a whole, and in the
absence of any indication to the contrary, I infer and find that the above
is the description of the unit for which Respondent recognized and con-
tracted with the Union and its predecessor at all times material to this
proceeding in 1981 and 1982.
4 Drake testified, without contradiction, that in the industry these two
descriptions are considered to be "relatively" the same business.
654
WALTER N. YODER & SONS
by your firm, we are requesting that you provide
the following information concerning a possible
connection between Walter A. [sic] Yoder and
Sons, Inc. [Yoder] and a firm known as Potomac
Metal and Supply, Inc. [Potomac]. We assure you
that this information is sought solely to enable us to
apply and enforce the terms of our collective bar-
gaining agreement with you .... We seek only to
ensure that all employees represented by Local 102
have their terms and conditions of employment
governed by our current collective bragaining
agreement.
Please provide the following information.
1. State whether any officer or director of Yoder
occupies any position as officer, director or em-
ployee of the Potomac company.
2. State whether any shareholders of stock in Yoder
serve as shareholders of Potomac or hold or
occupy any position as officer or employee of Po-
tomac.
3. State whether any officer or director of Yoder
owns stock in Potomac and, if so, what percent-
age of stock is so owned by that individual.
4. State whether any supervisor employed by Yoder
has served or currently serves as supervisor of
employees of Potomac.
5. State whether Potomac has subcontracted any
work from Yoder within the trade and territorial
jurisdiction of Local 102.
6. State whether any contracts between Yoder and
any other contractor have been assigned to the
Potomac. Also state whether any contracts be-
tween the Potomac and any other contractor have
been assigned to Yoder.
7. State whether any employee of Yoder has been
employed by the Potomac and state the terms of
such employment.
8. State whether any equipment, material, supplies
or vehicles have been exchanged by and between
Yoder and Potomac. State the rate for compensa-
tion for any such exchange of material, equipment,
etc.
9. What customers of Potomac are now or were for-
merly customers of Yoder?
10. State the difference, if any, in the type of busi-
ness engaged in by Potomac and Yoder.
11I. What services, including clerical, administrative,
bookkeeping, engineering, estimating, or other
services are performed for Potomac by or at
Yoder?
12. What insurance or other benefits are shared in
common by employees of Yoder and the employ-
ees of Potomac?
13. What skills do the employees of Potomac possess
that employees of Yoder possess?
14. Please list all former employees of Yoder that
are now employed by Potomac and their titles.
Again, we assure that this information is sought
solely to enable Local 102 to apply the terms of its
current collective bargaining agreement with Yoder
and for no other reason.
By letter dated April 5, Respondent replied to Drake's
requests for information, insisting that Respondent had
complied with and continued to observe the terms of the
bargaining agreement, that all employees represented by
the Local "have their terms and conditions of employ-
ment governed by our current collective bargaining
agreement," and suggesting that Drake talk to union
members at Respondent, who Respondent was "sure will
inform you that there has been no violations of the Col-
lective Bargaining Agreement." Respondent advised that
in response to Item 5 of the letter, Potomac "has not
subcontracted any work from [Respondent] within the
trade and territorial jurisdiction of Local 102," and with
regard to Item 6, no contracts between Yoder and any
other contractor have been assigned to [Potomac] within
your trade and territorial jurisdiction." Respondent de-
clined to provide any further information requested inas-
much as, Respondent stated, "we are not aware of any
violation of, or possible grievance under, our collective-
bargaining agreement," and because the Union's letter al-
legedly "has not identified any need for, or relevancy of,
the requested information." "Accordingly," Respondent
asserted, "we do not believe that the information sought
is necessary or appropriate to your performance of a role
as collective-bargaining agent, and disagree with your
conclusion that you are entitled to all of this information
under the National Labor Relations Act."
Even prior to this exchange of letters, on March 22,
Drake, at the inception of bargaining with Western
Maryland Mechanical Contractors Association for a bar-
gaining agreement to succeed the agreement expiring
April 30, asserted that Local 102 was claiming that Poto-
mac was an alter ego of Respondent and as such would
be bound by any agreement reached.
On April 19, Drake met with Walter N. Yoder, presi-
dent of Respondent, other members of management, and
with the shop steward for Local 102, at Respondent's
premises. Yoder sought to persuade Drake to drop his
claim that the Union's agreement with Respondent cov-
ered the operations of Potomac, arguing that the two
were in different businesses, and that Potomac handled a
gauge of metal that was outside the Union's jurisdiction.
Yoder asserted that Respondent was engaged in princi-
pally, if not entirely, in field construction, while Poto-
mac, while had originally engaged in field construction,
no longer did so, but was engaged in manufacture of
metal forms and similar shop work. Drake disputed
Yoder's claim that the work done by Potomac lay out-
side the Union's jurisdiction. At this meeting, there was
considerable discussion of Respondent's action in sending
its employees represented by the Union to Potomac's
premises to work on some sheet metal belonging to Re-
spondent. Yoder contended that Respondent, though it
had similar equipment, did not have the heavier equip-
ment required to bend the material involved. Potomac
has such equipment, but Yoder explained that the sheet
metal to be bent was extremely expensive, and he did not
trust the skill of Potomac employees to do the job. For
this reason Respondent's employees were sent to do the
-
655
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work. Yoder explained that if it were not for Potomac,
Respondent would have had to send the material be be
bent to some other shop, perhaps a considerable distance
away. It appears that after this incident, the union agent
in Cumberland had ruled that Respondent's employees
could not work at Potomac's shop. Yoder argued that
this worked to the disadvantage of union members em-
ployed by Respondent. Drake agreed to rescind the rule.
So far as the record shows, the Union has received no
further response from Respondent to its request for infor-
mation.
Analysis and Conclusions
It is well settled that under Section 8(a)(5) of the Act
a union which has the responsibility of representing em-
ployees for the purposes of collective bargaining is enti-
tled to request and obtain information from the employer
if there is a probability that such data is relevant and will
be of use to the union in fulfilling its statutory duties and
responsibilities in representing such employees. In par-
ticular, where the employer, party to a collective-bar-
gaining agreement, appears to be conducting a nonunion
"double breasted" operation,S the union party to that
agreement is entitled to information from the employer
as to the nature of and relationship between the two op-
erations which may reasonably be relevant and useful to
the union representing the employees in negotiating
terms and conditions of employment with the employer,
or administering and enforcing the collective-bargaining
agreement. See, e.g., Associated General Contractors of
California, supra, Leonard B. Hebert, Jr. & Co., 259
NLRB 881 (1981); Doubarn Sheet Metal, Inc., 243 NLRB
821 (1979).
In the present case, the president of the Union, based
on reports from an agent of the Union on the scene,8 and
from reports filed with the Maryland Department of As-
sessments and Taxation by the Respondent and a second
employer indicating that Respondent was conducting a
"double-breasted" operation, which was not in compli-
ance with the bargaining agreement between Respondent
and the Union, requested that Respondent answer 14
questions concerning Respondent's relationship with the
second employer. Respondent answered two of the ques-
tions (items 5 and 6), but declined to answer any of the
others, though it may have later, orally, answered an-
other (Item 10).
Though Respondent admits that the questions asked of
Respondent here are "obviously similar to the questions
s As stated by the Board in Associated General Contractors of California,
242 NLRB 891 fn. 5 (1979), "The term 'double-breasted' is used to de-
scribe contractors who operate two companies, one unionized and the
other nonunionized or open-shop. Depending on the underlying facts and
circumstances of each case, the employees of both constituent companies
may be held to constitute a single appropriate bargaining unit or the em-
ployees of each may be held to form separate units. In the former case,
the collective-bargaining agreement covering the employees of the union-
ized firm may be held to cover the employees of the nonunion firm as
well; or the employer may be ordered to bargain on behalf of both firms
with the union which had represented the unionized portion of such a
double-breasted operation."
a Respondent argues that since these reports were "hearsay." they are
"probative of nothing." This misses the point. Testimony concerning
these reports was received not for the truth of their content, but to dem-
onstrate the basis on which the Union acted in this matter.
asked in Doubarn and Hebert," it is nevertheless claimed
that it has not been shown that the information sought is
relevant to a "bona fide" interest of the Union. In par-
ticular, Respondent asserts that since the Union insists
that it was seeking information from Respondent here
"solely" for the purpose of enforcing its agreement then
in effect between the Union and Respondent, and since
that specific contract was not put into evidence, "there is
no basis for concluding that the Union had a bona fide
concern about a contract violation," arguing that with-
out that contract, "there is no possible record basis for
concluding that the Union could have believed that con-
tract could have been violated.
However, Respondent misapprehends the state of the
record here. There is no question but, at the times mate-
rial, Respondent and the Union were parties to a bar-
gaining agreement covering the terms and conditions of
sheet metal workers. The Union had information justify-
ing a good-faith conclusion that Respondent might be
conducting a double-breasted operation. And there is no
dispute that the second company (Potomac) was not ap-
plying the terms and conditions of the bargaining agree-
ment to its sheet metal workers.7 If Respondent and Po-
tomac were found to be a single employer (or alter
egos), Respondent might well be required to apply the
terms of the bargaining agreement to the sheet metal
workers employed by Potomac. See AGC of Calif., supra
fn. 5.
On the basis of the above and the record as a whole, I
find that there is a substantial probability that the infor-
mation which the Union requested from Respondent will
be relevant and of use to the Union in fulfilling its statu-
tory responsibility in representing the employees in the
appropriate unit, and in administering and enforcing its
collective-bargaining contract with Respondent, and that,
therefore, Respondent violated Section 8(a)(5) and (1) of
the Act by refusing and failing to provide to the Union
the information requested.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The bargaining unit set forth in footnote 3 herein-
above is a unit appropriate for collective bargaining
within the meaning of Section 9(a) of the Act.
4. At all times material to this proceeding the Union
was and continues to be the exclusive representative of
the employees in the aforesaid appropriate unit for the
7 At the hearing, though apparently not referred to in the brief, John
W. Yoder, an officer of Respondent and Potomac, seemed to indicate
that the employees of the two companies performed different functions,
Respondent being engaged in construction primarily, and Potomac in
manufacture or fabrication of sheet metal products. However, whether
Respondent's bargaining agreement covered functions performed by Po-
tomac's employees is not an issue to be decided here. We are concerned
only with whether the Union is entitled to information which will enable
to it decide if it should seek a remedy for the failure to apply the agree-
ment to the Potomac employees. See NLRB v. Acme Industrial Co., 385
U.S. 432 (1967).
656
WALTER N. YODER & SONS
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
5. Respondent, by failing and refusing to give the
Union information requested in the Union's letter to the
Respondent dated March 25, 1982, with reference to Re-
spondent's relationships and dealings with Potomas
Metal and Supply, Inc. violated Section 8(aX5) and (1) of
the Act.
THE REMEDY
It having been found that the Respondent violated the
Act by its refusal and failure to supply the Union with
certain information requested in the Union's letter of
March 25, 1982, which information is relevant and neces-
sary to the Union's obligation to represent the employees
in the contractual bargaining unit, it will be recommend-
ed that the Respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the
purposes of the Act.
[Recommended Order omitted from publication.]
657