N.L.R.B. v. Associated General Contractors of California, Inc.
| Citation | 633 F.2d 766 |
| Decision Date | 22 December 1980 |
| Docket Number | I,AFL-CIO,No. 79-7484,AFL-CI,79-7484 |
| Parties | 105 L.R.R.M. (BNA) 2912, 89 Lab.Cas. P 12,333 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ASSOCIATED GENERAL CONTRACTORS OF CALIFORNIA, INC., Respondent, and 46 Northern California Counties Conference Board, United Brotherhood of Carpenters and Joiners of America,, and Northern California District Council of Laborers, Laborers' International Union of North America,, Intervenors. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
James P. Watson, Los Angeles, Cal. (on brief), for respondent.
Victor J. Van Bourg, Van Bourg, Allen, Weinberg & Roger, San Francisco, Cal., for intervenor.
On Application for Enforcement of an Order of the National Labor Relations Board.
Before WRIGHT and POOLE, Circuit Judges, and BROWN, Senior District Judge. *
The National Labor Relations Board ordered a multi-employer bargaining agent to furnish a complete roster of its members to two unions. 1 The issue is whether a refusal to disclose the roster was a failure to bargain in good faith. We modify the Board's order, and enforce it as modified.
Associated General Contractors of California (AGC) is a trade association performing various services for its member contractors. Prior to 1971, it had five membership classifications: Regular, Specialty, Joint Venture, Affiliate, and Honorary. Pursuant to AGC's Bylaws, only the Regular, Specialty, and Joint Venture members conferred authority on AGC to engage in collective bargaining and enter into collective bargaining agreements on their behalf.
In 1971 AGC added an Open Shop classification. Under AGC's amended Bylaws, a contractor may not be admitted as an Open Shop member if it is subject to any existing collective bargaining agreement. Open Shop members give no collective bargaining authority to AGC.
In 1976 AGC added an Open Shop Specialty classification, under terms similar to those applicable to the Open Shop classification.
The Carpenters' Union 2 and the Laborers' Union 3 have engaged in collective bargaining with AGC since 1942. Each union entered into a three-year Master Agreement with AGC in 1974.
The Carpenters' contract bound every Regular, Specialty, and Joint Venture member of AGC. The Laborers' contract was unclear as to which employers it purported to cover. The unions contend it bound all AGC members. AGC argues only Regular, Specialty and Joint Venture members were covered. The Board did not decide the issue. We assume, without deciding, that Open Shop and Open Shop Specialty members were not bound solely by virtue of their AGC membership. 4
Both contracts contained provisions binding employers regardless of changes in the name, style, or address of their businesses.
Following negotiation of the 1974 contracts, AGC sponsored seminars on the operation of open shops, including methods of converting from union to open shops, and of operating both union and open shops (double-breasted construction).
The union became concerned about the growing number of open shop contractors. AGC's open shop membership increased from 10 in 1974 to 60 in 1978. Employer contributions to union trust funds decreased, despite industry-wide increases in construction volume and employment.
The unions believed AGC members subject to the collective bargaining agreements (approximately 550) would transfer classifications or establish a second, open shop operation. They set up an elaborate system to check the identities of newly licensed firms. They have identified one California contractor (not an AGC member, however) which changed its name 18 times in nine months.
They have pointed to three instances in which an AGC member bound by the Master Agreement shared common ownership with an open shop contractor. In at least one of those cases, however, the Regional Director of the Board has determined the open shop contractor was not the "alter ego" of the union shop contractor and, thus, not subject to the Master Agreement.
As the end of the 1974 contracts neared, the Carpenters requested a roster of AGC's entire membership. Subsequently, both unions made this request, asserting they needed the full roster in order to: (1) monitor name changes pursuant to the contract provisions; (2) identify employers who transfer from one membership classification to another; (3) enforce their position that all AGC members were bound by the Laborers' contract; (4) facilitate bargaining by identifying who AGC represented; and (5) police and enforce the contracts.
AGC regularly provides the unions with rosters of its Regular, Specialty, and Joint Venture members, and updates those rosters from time to time. It refused, however, to provide a full membership roster.
The unions filed charges with the Board in January of 1977, alleging AGC had failed to bargain in good faith. They also entered into new three-year Master Agreements with AGC, containing the same provisions as the 1974 agreements on name and style changes and on employer coverage.
After a hearing, an Administrative Law Judge dismissed the charges. He found the "basic failing" in the unions' position to be the absence of language in the collective bargaining agreements identifying the employers that are covered. He apparently felt the reason the unions wanted the roster was to engage in "the notorious top down mode of organizing" open shop employees. He did not, however, make explicit findings of fact or conclusions of law.
The Board found the full roster relevant to the unions' performance of their statutory duties. The full roster was necessary to enable the unions to investigate the possibility of unlawful double-breasted construction, to assess the advisability of initiating grievances or taking other remedial action, and to formulate contract proposals regarding employers to be covered by the Master Agreements.
The legal principles which govern this case are well settled. The duty to bargain in good faith, imposed by § 8(a)(5) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(5) (1976), may be violated by an employer's refusal to furnish information relevant to the union's negotiation or administration of a collective bargaining agreement. Detroit Edison Co. v. NLRB, 440 U.S. 301, 303, 99 S.Ct. 1123, 1125, 59 L.Ed.2d 333 (1979); NLRB v. Acme Industrial Co., 385 U.S. 432, 435-36, 87 S.Ct. 565, 567-68, 17 L.Ed.2d 495 (1967); NLRB v. Truitt Manufacturing Co., 351 U.S. 149, 152, 76 U.S. 753, 755, 100 L.Ed. 1027 (1956).
Information relevant to the filing or processing of grievances is relevant to contract administration. Acme Industrial Co., 385 U.S. at 436-38, 87 S.Ct. at 568-69; NLRB v. Goodyear Aerospace Corp., 388 F.2d 673 (6th Cir. 1968).
Whether there has been a violation turns upon the facts of the case. Truitt, 351 U.S. at 153-54, 76 S.Ct. at 756; Shell Oil Co. v. NLRB, 457 F.2d 615, 618 (9th Cir. 1972). See Cox, The Duty to Bargain in Good Faith, 71 Harv.L.Rev. 1401 (1958).
Although only relevant information must be disclosed, a refusal to disclose even relevant information is not always a § 8(a)(5) violation. Emeryville Research Center v. NLRB, 441 F.2d 880, 885 (9th Cir. 1971) (); Shell Oil, 457 F.2d at 618. See Gorman, Basic Text on Labor Law, 417-18 (1977). The employer's reasons for nondisclosure and the negotiating conduct of the parties must be considered. See Shell Oil, 457 F.2d at 618.
The threshold question is whether the information sought is relevant to the unions' duties. The Board and the courts have employed a liberal, discovery-type standard of what constitutes relevant information. Acme Industrial Co., 385 U.S. at 437, 87 S.Ct. at 568; San Diego Newspaper Guild v. NLRB, 548 F.2d 863, 867 (9th Cir. 1977).
The Board's determination on this issue is given great weight, either because it is a finding of fact, which is conclusive if supported by substantial evidence, or because it is a finding on a mixed question of law and fact which is within the expertise of the Board. San Diego Newspaper Guild, 548 F.2d at 867.
The information sought by the unions does not fall within the category of information that is presumptively relevant 4a and, thus, the unions had the initial burden to show relevancy. San Diego Newspaper Guild, 548 F.2d at 867-68. They introduced evidence establishing an increase in the number of open shop contractors, AGC sponsorship of seminars instructing contractors on conversion from union to open shops, and common ownership of some union and open shop contractors.
Two or more employers, if they are "alter egos," may be treated as a single employer under the NLRA. If one is subject to a collective bargaining agreement, the others will be bound by it. See NLRB v. Don Burgess Construction Corp., 596 F.2d 378, 384-86 (9th Cir.), cert. denied, 444 U.S. 940, 100 S.Ct. 293, 62 L.Ed.2d 306 (1979). AGC emphasizes that common ownership alone will not bind the open shop employers. See id. at 384 (). 5 Under the facts of this case, however, the unions have met their initial burden by showing that the information sought is relevant to investigations of contract violations, and that there is a reasonable basis for further investigation. 6
AGC makes three arguments to rebut this showing: first, no actual violations have been established; second, the roster will not aid the unions in uncovering contract violations; and third, the unions really want the roster in order to engage in organizational activities.
The first argument misconstrues the standard to be applied. It is sufficient that the information sought is relevant to possible violations where the union has established a reasonable basis to suspect such violations have occurred. Actual violations need not be...
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