Walter N. Yoder & Sons, Inc. v. N.L.R.B.
| Citation | 754 F.2d 531 |
| Decision Date | 15 February 1985 |
| Docket Number | No. 84-1580,84-1580 |
| Parties | 118 L.R.R.M. (BNA) 2706, 102 Lab.Cas. P 11,359 WALTER N. YODER & SONS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Sheet Metal Workers' International Assoc., Local 100, Intervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Lawrence E. Dube, Jr., Baltimore, Md. (John G. Kruchko, Towson, Md., on brief), for petitioner.
Andrew F. Tranovich, Washington, D.C. (Wilford W. Johansen, Acting Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Washington, D.C., on brief), for respondent.
Richard M. Resnick, Washington, D.C. (Sherman, Dunn, Cohen, Leifer & Counts, P.C., Washington, D.C., on brief), for intervenor.
Before WINTER, Chief Judge, and PHILLIPS and MURNAGHAN, Circuit Judges.
Walter N. Yoder & Sons, Inc. (Yoder) petitions for review of a National Labor Relations Board (NLRB or Board) order commanding it to cease and desist an unfair labor practice--withholding from Local 100 of the Sheet Metal Workers' International requested information necessary for the union to negotiate or enforce a collective bargaining agreement. Reviewing the Board's order under section 10(f) of the National Labor Relations Act (the Act), 29 U.S.C. Sec. 160(f), we conclude that there was substantial evidence to support the Board's finding that Yoder committed an unfair labor practice. Accordingly, we affirm the Board's findings and enforce the order against the petitioner.
Yoder is a Cumberland, Maryland construction firm that engages in part in plumbing and heating contracting. As a member of the Western Maryland Mechanical Contractors Association, it was a signatory to a collective bargaining agreement with the Sheet Metal Workers' International Association. In March 1982, Richard Drake, president of Local 100, opened negotiations with the Contractors' Association in order to reach an agreement to replace the contract due to expire on April 30, 1982. Drake announced at that time that he believed Yoder and another company were operating non-union alter ego firms, but that he would not raise those allegations as an issue in the negotiations nor would the allegations prevent ratification of any agreement reached.
Shortly thereafter, on March 25, 1982, Drake wrote the Yoder Company and repeated his allegation that Yoder was operating Potomac Metal & Supply, Inc., a non-union sheet metal firm. Attached to his letter were fourteen interrogatories concerning the ownership, corporate structure, business, and personnel of the two firms. Drake asserted in the letter that the information was "sought solely to enable us to apply and enforce the terms of our collective bargaining agreement with you."
Yoder responded by answering two of the interrogatories dealing with subcontracts and assignment of subcontracts. Yoder declined to answer any of the remaining questions on the grounds that the union failed to identify a need for the information and failed to establish its relevance to the bargaining agreement. Yoder denied any violation of the contract.
On April 19, 1982, Drake met with John Yoder to discuss the problem. Yoder told Drake that the two companies were not in the same business because Yoder was a construction firm whereas Potomac was a manufacturer of sheet metal products. Mr. Yoder admitted that Potomac did some repair work on Yoder's trucks, but that it did not fabricate sheet metal for Yoder. Mr. Yoder also told Drake that Yoder employees sometimes used equipment in Potomac's shop, but only because the equipment was specialized and Yoder did not trust Potomac employees to do the job. At a later meeting that day, Yoder employees confirmed Yoder's latter assertion.
No further correspondence passed between the union and the company, and on April 30, 1982, the union filed a grievance with the NLRB, alleging a violation of sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1) & (5). The Regional Director issued a complaint and notice of hearing and the case duly came before an ALJ for hearing.
At the hearing Drake was the only witness to testify in support of the grievance. He asserted that his request to Yoder for information was based on his belief that Yoder was engaged in a "double-breasted" operation. John Wilkinson, a business manager for one of the preconsolidation locals, had informed him that Yoder employees had reported an integration of operations between Yoder and Potomac; specifically, Wilkinson had reported that Yoder employees were working in Potomac's shop and that Potomac had fabricated sheet metal for Yoder. Based on these reports from Wilkinson, Drake had initiated an investigation and discovered that Yoder and Potomac had the same set of officers and directors. Furthermore state records described Potomac as a plumbing and sheet metal firm and Yoder as a plumbing and heating firm, indicating a similarity in their businesses. Drake also testified that after making the request, he saw Potomac mentioned in the Dodge Report, a trade publication that reported bids on various projects, thereby indicating that Potomac was in construction, directly contrary to Yoder's assertion that Potomac was purely a manufacturer.
Yoder testified on behalf of the company and reasserted that Yoder's operational involvement with Potomac was confined to specialized jobs Yoder was not equipped to perform. Mr. Yoder also asserted that he had encouraged the union to question his employees because they could establish that there was no interrelationship of employees or operations.
The ALJ found on the basis of this evidence that the union had a reasonable belief that Yoder was operating Potomac as an alter ego company. The requested information concerned the very facts which would establish an interrelated operation. Because establishing the alter ego relationship would be a basis for legal action by the union to enforce the contract in regard to Potomac employees, the information sought was relevant to the union's enforcement of the collective bargaining agreement. Therefore, concluded the ALJ, the company had violated Secs. 8(a)(1) and (5) of the Act. He then ordered the company to answer the interrogatories.
The company appealed to the Board for review of the ALJ proceeding. The Board found no error in the ALJ's findings or conclusions of law, and affirmed the order with only a slight modification to reflect that two of the interrogatories had already been answered.
The question before us is simply whether there is substantial evidence in the record to support the ALJ's findings as adopted by the Board. Preliminarily, the petitioner challenges the admission of much of Drake's testimony at the hearing and asserts that the ALJ unduly restricted cross-examination of Drake. We find no merit in either assertion.
The petitioner challenges much of Drake's testimony as hearsay since it concerns reports made to him by others. The Board is bound by law to conduct its hearings "so far as practicable" in accordance with the Federal Rules of Evidence and may not base factual findings solely on hearsay evidence. 29 U.S.C. Sec. 160(b); Union Drawn Steel Co. v. NLRB, 109 F.2d 587 (3d Cir.1940). However, the ALJ was clearly correct in ruling that Drake's testimony concerning reports made to him was not hearsay. The evidence of these reports was offered not to establish that there was in fact an alter ego company, but rather to establish that Drake's request was not totally unfounded. See San Diego Newspaper Guild, Local 95 v. NLRB, 548 F.2d 863 (9th Cir.1977). That the reports were made was the probative fact for which the testimony was offered; the truth of the reports did not bear on the...
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