Union Builders, Inc. v. N.L.R.B.

Citation68 F.3d 520
Decision Date20 October 1995
Docket NumberAFL-CI,I,No. 95-1294,95-1294
Parties150 L.R.R.M. (BNA) 2577, 64 USLW 2303, 131 Lab.Cas. P 11,427 UNION BUILDERS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, District Council 94, United Brotherhood of Carpenters and Joiners of America,ntervenor.
CourtU.S. Court of Appeals — First Circuit

Andrew B. Prescott, with whom Donald P. Rothschild and Tillinghast Collins & Graham, Providence, RI, were on brief for petitioner.

Joseph A. Oertel, Senior Litigation Attorney, National Labor Relations Board, Washington, DC, with whom Fredric L. Feinstein, General Counsel, Hollywood, FL, Linda Sher, Acting Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Charles Donnelly, Supervisory Attorney, National Labor Relations Board, Washington, DC, were on brief, for respondent.

Before TORRUELLA, Chief Judge, ALDRICH and COFFIN, Senior Circuit Judges.

TORRUELLA, Chief Judge.

The petitioner, Union Builders, Inc. ("UBI") seeks review of the decision of the respondent, the National Labor Relations Board ("the Board" or "the NLRB"), ordering UBI to supply requested information to District Council 94, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (the "Union"). The NLRB cross-applies, under Sec. 10(e) of the National Labor Relations Act ("the Act"), 29 U.S.C. Sec. 160(e), for enforcement of its order against UBI. The Board has ordered UBI to cease and desist from violating Sec. 8(a)(5) and (1) of the Act, 29 U.S.C. Secs. 158(a)(1) and (a)(5), furnish the Union with the information it requested, and post appropriate notices. For the following reasons, we affirm the Board's Decision and Order.

I. BACKGROUND

In 1989, a Rhode Island company called O. Ahlborg & Sons ("O. Ahlborg") executed a three-year collective bargaining agreement ("CBA") with the Union. On or about March 24, 1992, O. Ahlborg notified the Union that it planned to terminate the agreement as of May 31, 1992, as was O. Ahlborg's contractual right. As a result of collective bargaining with the Union's then business manager (Herbert F. Holmes), O. Ahlborg reached an agreement (the "Holmes-Ahlborg Agreement") with the Union (confirmed by a letter dated May 29, 1992) whereby a new employer entity, UBI, would be formed. Under the Holmes-Ahlborg Agreement, UBI would enter into a collective bargaining agreement (the "new CBA") with the Union and would continue all union bargaining unit work performed at that time by O. Ahlborg. The Board found that the Holmes-Ahlborg Agreement also provided that, as between UBI and O. Ahlborg, UBI would be allotted all prevailing rate jobs.

Additionally, under the Holmes-Ahlborg Agreement, UBI would assume all employees currently performing union bargaining unit work for O. Ahlborg, and there would be no interruption in production, employment or wages of union members despite the termination of the O. Ahlborg-Union CBA. Shortly thereafter, UBI and the Union entered into the new CBA, which provided that

[UBI] will not subcontract any work covered by the terms of this agreement which is to be performed at the jobsite except to a contractor who holds an agreement with the United Brotherhood of Carpenters and Joiners of America, or one of its subordinate bodies, or, who agrees, in writing, prior to or at the time of the execution of the sub-contract, to be bound by the terms of this agreement.

The new CBA covered the period from June 1, 1992 to June 4, 1995.

On December 8, 1993, David F. Palmisciano, who had replaced Holmes as union business representative, sent a letter to UBI's chief executive Eric Ahlborg, expressing concern that UBI was "operating a second company" as "an alter ego." The letter also requested that Eric Ahlborg fill out and return an enclosed questionnaire. Eric Ahlborg refused to reply to the questionnaire.

Subsequently, the matter came before an administrative law judge ("ALJ") on the NLRB General Counsel's complaint alleging that UBI violated Secs. 8(a)(5) and 8(a)(1) of the Act by refusing to furnish information that the Union alleged was necessary for, and relevant to, the performance of its duties as the exclusive collective-bargaining representative of unit employees. Palmisciano testified before an ALJ that, during three previous onsite inspections, he saw evidence that UBI had violated his interpretation of the Holmes-Ahlborg Agreement: that as between O. Ahlborg and UBI, UBI would garner all state, Federal and other work with high wage rates, particularly "prevailing rates," and that such work would all go to union carpenters.

The ALJ concluded that the Union reasonably believed that UBI was operating O. Ahlborg as an "alter ego" and subcontracting in a manner that violated the Holmes-Ahlborg Agreement's award of prevailing rate jobs to UBI and its union member employees only. 1 Thus, the ALJ concluded that the Union's reasonable belief justified the request for information, and ordered UBI to comply. The Board affirmed the ALJ's rulings, findings and conclusions, and adopted his recommended Order. UBI seeks review of the Board's decision, and the Board cross-applies for enforcement of its order against UBI.

II. STANDARD OF REVIEW

We will enforce a Board order if the Board correctly applied the law and if substantial evidence on the record supports the Board's factual findings. Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 22-23 (1st Cir.1983), cited in NLRB v. Acme Tile and Terrazzo, Co., 984 F.2d 555, 556 (1st Cir.1993). We uphold the Board's findings of a violation as long as substantial evidence on the record as a whole supports them, even if we would have reached a different conclusion. 29 U.S.C. Secs. 160(e) and (f); 3-E Co., Inc. v. NLRB, 26 F.3d 1, 3 (1st Cir.1994); Cumberland Farms, Inc. v. NLRB, 984 F.2d 556, 559 (1st Cir.1993).

III. DISCUSSION

As part of the Sec. 8(a)(5) duty to bargain, an employer must furnish all information requested by a union that is necessary to the union in order to fulfill its obligation as representative of bargaining unit employees. 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. New England Newspapers, Inc., 856 F.2d 409, 413 (1st Cir.1988). Thus, an employer must produce information that is "relevant to [the bargaining representative's] duties," including information necessary to police the CBA. New England Newspapers, Inc., 856 F.2d at 413. Because the duty to bargain "unquestionably extends beyond the period of contract negotiations and applies to labor-management relations during the term of an agreement," NLRB v. Acme Industrial Co., 385 U.S. at 436, 87 S.Ct. at 568, the Union could have requested the information simply because of its relevance to its ongoing agreement with UBI. In this regard, we note that the Board may determine that the employer has a duty to provide information if it finds even "a probability that the information is relevant and that it will be of use to the union in carrying out its statutory duties." NLRB v. Pfizer, Inc., 763 F.2d 887, 889 (7th Cir.1985) (emphasis added). See also General Electric Co. v. NLRB, 916 F.2d 1163, 1168 (7th Cir.1990) (relevance is most often viewed liberally to allow for broad disclosure of information).

As an initial matter, we reject UBI's argument that, via the Holmes-Ahlborg Agreement, the Union approved the coexistence of O. Ahlborg and UBI, and thereby waived its right to challenge O. Ahlborg as UBI's alter ego. UBI has cited neither legal authority nor requisite factual evidence to support its waiver argument. Furthermore, nothing in the Holmes-Ahlborg Agreement shows an unequivocal waiver by the Union of its right to investigate the alleged diversion to O. Ahlborg of prevailing rate jobs. Communication Workers of America AFL-CIO, Local 1051 v. NLRB, 644 F.2d 923, 927 (1st Cir.1981) ("the union may relinquish a statutory right only by 'clear and unmistakable' waiver") (quoting NLRB v. Perkins Machine Co., 326 F.2d 488, 489 (1st Cir.1964)). Finally, the ALJ specifically rejected UBI's waiver argument based on the facts presented.

The ALJ correctly distinguished the issue of whether UBI must supply the requested information from the issue of whether O. Ahlborg and UBI are in fact intertwined in an alter ego relationship. We agree that only the information issue bears on this case. With respect to this issue, we are persuaded that we should apply a "discovery-type" standard so that the Union may gather " 'a broad range of potentially useful information ... for the purpose of effectuating the bargaining process'." NLRB v. Illinois-American Water Co., 933 F.2d 1368, 1378 (7th Cir.1991) (quoting Procter & Gamble Manufacturing Co. v. NLRB, 603 F.2d 1310, 1315 (8th Cir.1979)). In particular, the Supreme Court has stressed that the Board should apply a more liberal standard of relevance to information requests under the duty to bargain in good faith than would be appropriate at trial. NLRB v. Acme Industrial Co., 385 U.S. 432, 437 & n. 6, 87 S.Ct. 565, 568 & n. 6, 17 L.Ed.2d 495 (1967). Thus, the Union cannot be required to prove that UBI is in breach of its CBA or that O. Ahlborg is UBI's alter ego before the Union can receive information that could help prove such allegations. In deciding to apply such a standard, the ALJ correctly noted that such information does not only benefit unions. In fact, requiring employers to...

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