E.J. Alrich Electrical Contractors

National Labor Relations Board - Board Decisions

Jun 30, 1998

325 N.L.R.B. 1036 (N.L.R.B. 1998)

1036
325 NLRB No. 193
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent’s request for oral argument is denied as the
record, exceptions, and briefs adequately present the issues and posi-
tions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings. In doing so, however, we
do not rely on the judge’s observation that the threats attributed to
the Union would not be ‘‘unusual statements from a union attempt-
ing to organize a company’s employees.’’
In adopting the finding of a violation, we note, as did the judge
in his findings of fact, that the Union made its request for informa-
tion after hearing William Tortoriello’s statements that the Respond-
ent and Germinsky Electric were the same company; that they
shared the same administration and ownership; and that they shared
tools, equipment, material, and administrative staff, and had the
same phone system. We also note, inter alia, that Union representa-
tive Battoni discovered contractor remittance reports showing the
two companies had an identical Federal I.D. number. We find that,
based on this evidence, the Union had a reasonable belief that the
two companies might be alter egos. Thus, as the judge found, the
Union, as the collective-bargaining representative of the Respond-
ent’s employees, was entitled to the requested information to verify
whether its belief was accurate. The Respondent does not challenge
the scope or content of the information request.
3 We shall modify the judge’s recommended Order to require Re-
spondent to furnish the requested information to the Unions without
any further request on their part. See I & F Corp., 322 NLRB 1037
fn. 1 (1997). We also shall modify the judge’s recommended Order
in accordance with our decisions in Indian Hills Care Center, 321
NLRB 144 (1996), and Excel Container, Inc., 325 NLRB 17 (1997).
E. J. Alrich Electrical Contractors, Inc. and Local
269, International Brotherhood of Electrical
Workers. Case 22–CA–20796
June 30, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND BRAME
On November 14, 1997, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel 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 briefs1 and has
decided to adopt the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below, and orders that the Respondent, E.J.
Alrich Electrical Contractors, Inc., Ringwood, New
Jersey, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified
below.
1. Substitute the following for paragraph 2(a).
‘‘(a) Furnish to all the Unions named above in a
timely manner the information that they requested in
May and June 1995.’’
2. Substitute the following for paragraph 2(b).
‘‘(b) Within 14 days after service by the Region,
post at its facility in Ringwood, New Jersey, copies of
the attached notice marked ‘‘Appendix.’’5 Copies of
the notice, on forms provided by the Regional Director
for Region 22, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent 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 no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current and
former employees employed by the Respondent at any
time since May 19, 1995.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
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 had found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
Locals 269, 52, 351, 358, 400, 456, 675, and 743 of
the International Brotherhood of Electrical Workers
(the Unions) by refusing to furnish the Unions with in-
formation necessary for, and relevant to, the Unions’
function as the exclusive bargaining representative of
certain of our employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL furnish the Unions in a timely manner the
information that they requested in May and June 1995.
E.J. ALRICH ELECTRICAL CONTRAC-
TORS, INC.
Julie Kaufman, Esq., for the General Counsel.
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1037E. J. ALRICH ELECTRICAL CONTRACTORS
1 Unless indicated otherwise, all dates referred to herein relate to
the year 1995.
2 Some time after the executions of these letters of assent, one of
these Unions, Local 439, merged into Local 351.
Ronald Tobia, Esq. and Jill Tobia, Esq. (Schwartz, Tobia,
Stanziale, Becker, Rosensweig & Sedita), for the Respond-
ent.
Gary Carlson, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law. This case was
heard by me on February 10 and September 29, 1997, in
Newark, New Jersey. The complaint herein, which was based
upon an unfair labor practice charge that was filed on July
12, 1995,1 by Local 269, International Brotherhood of Elec-
trical Workers (Local 269) alleges that E.J. Alrich Electrical
Contractors, Inc. (Respondent) violated Section 8(a)(1) and
(5) of the Act by failing and refusing to provide to Local
269, as well as Locals 52, 351, 358, 400, 456, 675, and
Local 743, International Brotherhood of Electrical Workers
(at times, collectively, the Unions) certain information re-
quested by these Unions in May and June, despite the fact
that this information is relevant to the Unions as the collec-
tive-bargaining representative of certain of Respondent’s em-
ployees.
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, that it has been engaged in
commerce within the meaning of Section 2(2), (6),and (7) of
the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that Local 269 has been a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE FACTS
There are two principal employers involved herein, the Re-
spondent and Germinsky Electrical Company, Inc.
(Germinsky Electric) and two individuals, Manny Germinsky
and Bruce Germinsky, father and son. Since April 1,
Germinsky Electric has been one of three company’s which
make up the Germinsky Group. Bruce Germinsky has been
the president of the Respondent since its formation in about
1975 and, up until April 1, he owned 90 percent of Respond-
ent’s outstanding shares with Manny Germinsky owning the
balance. From April 1 to date, Bruce Germinsky has owned
100 percent of Respondent’s stock. Up until April 1, Bruce
and Manny Germinsky were each shareholders of Germinsky
Electric; commencing on about April 1, with the formation
of the Germinsky Group, Bruce and Manny Germinsky each
owned 50 percent of this Company. Since about January 1,
1996, Bruce Germinsky has owned 100 percent of the shares
of the Germinsky Group. More importantly, Germinsky Elec-
tric has operated as a nonunion electrical contractor since
1922, first under the ownership of Bruce Germinsky’s grand-
father, Manny Germinsky, and then himself. At the present
time, Germinsky Electric is still a nonunion electrical con-
tractor performing, basically, commercial service, installation,
and renovation work, and presently employing between 40
and 45 electricians. Respondent was created in 1975 to serv-
ice customers of Germinsky Electric who had projects requir-
ing that the work be performed by union electricians, and
Bruce Germinsky ‘‘basically’’ ran this Company. Sometime
after April 1, Respondent ceased operations, according to Re-
spondent, because of market forces, economic circumstances,
and personal reasons, the retirement of Manny Germinsky,
and Bruce Germinsky’s assumption of the operation of
Germinsky Electric.
Most of the facts herein are undenied. Between November
1976 and June 1993 Respondent entered into letters of assent
with the Unions involved herein2 without regard to whether
majority status of these unions had ever been established
under the provisions of Section 9(a) of the Act. In other
words, these were 8(f) agreements. The most recent collec-
tive-bargaining agreements that Respondent is bound by pur-
suant to these letters of assent, expire between August 31,
1996, and May 31, 1999. In nearly identical letters to the Re-
spondent dated between May 19 and June 12, the Unions no-
tified Respondent that it has come to their attention that the
Respondent is, or may be, in violation of its contract with
the Union because of Respondent’s operation of Germinsky
Electric. These letters then ask 44 questions about the oper-
ations and connections of the two companies. Respondent
has never responded to these letters.
The principal witnesses for the General Counsel were
Clement Battoni, business agent and organizer for Local 675,
and William Tortoriello, who had been employed by
Germinsky Electric. Battoni testified that he knew of
Germinsky Electric as a nonunion contractor because he was
born and raised in the area where it is located and at the time
that he became an organizer for Local 675 in 1988, he knew
that Manny Germinsky owned Germinsky Electric. When
asked by counsel for the Respondent if it was common
knowledge in the trade that one of these companies was
union and the other was nonunion, he answered yes. In addi-
tion, he is the referral agent for Local 675 and, from the time
that he became employed by Local 675, in about 1988, until
the early 1990s, he received telephone calls from Bruce
Germinsky and Tortoriello, requesting referrals of employees
to Respondent, and he complied with these requests. The
procedure was that Tortoriello or Germinsky called him, said
how many employees they needed, and he sent the employ-
ees to Respondent. When Tortoriello called, he identified
himself as Bill or Billy T from Respondent. In about Feb-
ruary, a Local 675 member told him that Germinsky Electric
had terminated Tortoriello; Battoni said that he meant Re-
spondent, and the member replied no, Germinsky Electric
fired him. Battoni testified: ‘‘A red flag went up because
Tortoriello was the guy that used to call me for manpower
for Alrich Electric.’’ Battoni called Tortoriello and said that
he understood that he had been fired. Tortoriello responded
that he had worked for Germinsky for 30, and Battoni said,
‘‘You mean Alrich Electric.’’ Tortoriello said, ‘‘No,
Germinsky Electric.’’ Battoni asked: ‘‘Didn’t you work for
Alrich?’’ and he responded, ‘‘They are the same company.’’
Battoni then told him that he knew some contractors and, al-
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1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Battoni testified that he was previously aware of the fact that
they were located in the same building.
though he could not promise him anything, he would attempt
to get him a job interview, and Tortoriello did obtain em-
ployment with the Company that Battoni referred him to.
About a week after this initial phone call, Battoni and
Tortoriello met at the Local 675 office. Battoni asked him
if Respondent and Germinsky were related, and he said:
‘‘They’re the same company. They share the same adminis-
tration, the same ownership. They’re in the same . . . build-
ing.3 They share tools, equipment, material, administrative
staff. They even have the same receptionist.’’ He also said
that the same truck delivers to Respondent and Germinsky
Electric, and that they have the same phone system. Battoni
testified that New Jersey locals of the IBEW generally hold
monthly meetings to discuss recent developments. In about
the May meeting, presided over by Gene Adams, the IBEW
International Representative Battoni told those present the in-
formation he had learned regarding the relationship of Re-
spondent and Germinsky Electric and ‘‘the possibility of
alter ego, double breasting.’’ One of the other union rep-
resentatives at the meeting said that Germinsky Electric was
operating in his jurisdiction as well, which, Battoni testified:
‘‘[S]howed that he was kind of branching out.’’ Battoni also
showed those present at the meeting a letter dated May 5
from the Germinsky Group to its employees informing them
that Local 675 was attempting to organize them. Battoni
stressed to those present the significance of the fact that the
letter was signed by Bruce Germinsky, as president and
CEO, while he was also signatory to their letters of assent
for the Respondent. Additionally, after receiving this letter
from a member, Battoni checked his contractor’s remittance
records and found two remittance reports, one from Respond-
ent and the other from Germinsky Electric, both with an
identical Federal I.D. number, although John Cortese, who is
the vice president of finance and administration for the
Germinsky Group, testified that the Respondent and
Germinsky Electric each has its own Federal I.D number. As
a result of all this information, at Adams’ request, each of
the Unions named in the complaint sent identical 44 question
information demands to the Respondent. As to why he made
this information request to the Respondent, Battoni testified:
‘‘My reason is that we believe that there might be a violation
of the Collective Bargaining Agreement with [Respondent].’’
Bruce Germinsky testified that in about 1988 he had a
meeting with Battoni, who asked him why Respondent did
not perform more work in the area. Battoni also asked,
‘‘[Q]uestions about the Alrich and Germinsky operation and
why the work was divided the way it was.’’ He told Battoni
that Germinsky Electric was his father’s business and Re-
spondent was his; 99 percent of the work that Respondent
gets is work that Germinsky Electric’s customers decide has
to be union. He further testified that over the years that he
has operated the Respondent, he has discussed the Respond-
ent and Germinsky Electric with all of the union representa-
tives, answering their questions such as why Respondent was
not performing certain work. He told these representatives
what he told Battoni, supra. In addition, he also told them
that if they had any questions about work being performed
by Germinsky Electric, to call his father.
By Order dated March 21, 1997, the Board granted the
Respondent’s request for special permission to appeal, and
directed me to reopen the record herein for the purpose of
permitting the parties to present evidence regarding the Re-
spondent’s defense herein that the Unions’ information re-
quests were made in bad faith, and therefore the Respondent
can lawfully refuse to respond to the requests. At the reopen-
ing, on September 29, 1997, the Respondent called nine
union representatives, as well as Bruce and Manny
Germinsky. There is agreement on some of this testimony
and credibility issues on others. Admittedly, a member of the
Local 262 executive board was hired by, and became a su-
pervisor for, the Respondent. Additionally, another Local 262
member, started out as a journeyman and then became a
foreman and a supervisor for the Respondent. There is also
agreement that at meetings between union representatives
and Bruce and Manny Germinsky, the union representatives
asked them to sign a statewide agreement for Germinsky
Electric, which they refused to do. However, in an issue that
may be more semantics than substantive, Bruce and Manny
Germinsky testified that at some of these meetings, the union
representatives told them that Germinsky was a ‘‘targeted’’
employer by the Union. The parties agree that there was ani-
mosity between Neal Boyle, of Local 675 (since retired), and
Bruce and Manny Germinsky. They disagree on whether
there were threats about what he, and the Unions, would do
to Germinsky Electric if it refused to sign a contract with the
Union. Bruce and Manny Germinsky testified that at meet-
ings union representatives said that Boyle would bring them
to their knees, try to destroy them, bankrupt them and put
them out of business unless they signed with the Union.
Union representatives Elias Baram, Pat Dellecava, Raymond
Greeley, and Martin Schwartz each denied that these state-
ments were made at meetings they attended with Bruce and
Manny Germinsky. I found Baram to be an extremely credi-
ble and believable witness and found Greeley to be credible
and believable, as well. Although Manny and Bruce
Germinsky appeared to be credible as well, and although the
statements attributed to the union representatives (by way of
Boyle) are not unusual statements from a union attempting
to organize a company’s employees, I found Baram and, to
a lesser degree, Greeley, so credible that I credit their testi-
mony that these threatening statements were not made.
IV. ANALYSIS
Admittedly, the Unions made the requests for information
upon the Respondent and Respondent refused to answer
these requests. However, Respondent has a number of de-
fenses to this allegation. The Respondent defends that these
Unions are not entitled to this information because they
knew, and acquiesced in, the Germinsky family’s two oper-
ations for more than 20 years: Manny nonunion with
Germinsky Electric and Bruce, union, with Alrich. They can-
not claim to have a reasonable suspicion of a double breasted
operation since they long have had actual knowledge of it.
Further, even if they otherwise had the right to this informa-
tion, since the Unions’ real interest is organizing the employ-
ees of Germinsky Electric, these requests were made in bad
faith and the Unions are not entitled to the information. The
remaining defense is that because these Unions are 8(f) rep-
resentatives they have no statutory right to information that
they might otherwise have.
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1039E. J. ALRICH ELECTRICAL CONTRACTORS
The Board, in Sheraton Hartford Hotel, 289 NLRB 463–
464 (1988), set forth the law to be applied in situations like
the instant matter:
Section 8(a)(5) obligates an employer to provide a
union requested information if there is a probability that
the information would be relevant to the union in ful-
filling its statutory duties as bargaining representative.
Where the requested information concerns wage rates,
job descriptions, and other information pertaining to
employees within the bargaining unit, the information is
presumptively relevant. Where the information does not
concern matters pertaining to the bargaining unit, the
union must show that the information is relevant. When
the requested information does not pertain to matters
related to the bargaining unit, to satisfy the burden of
showing relevance, the union must offer more than
mere suspicion for it to be entitled to the information.
[Citations omitted.]
A union satisfies this burden by demonstrating a reasonable
belief supported by objective evidence for requesting the in-
formation. Shoppers Food Warehouse, 315 NLRB 258, 259
(1994). Additionally, potential or probable relevance is suffi-
cient to give rise to the employer’s obligation to furnish the
information; a prima facie case need not be established.
Brisco Sheet Metal, 307 NLRB 361 (1992); Reiss Viking,
312 NLRB 622 (1993).
The Unions herein have clearly satisfied the burden of es-
tablishing the relevance of the information that they re-
quested in May and June. They have represented certain of
Respondent’s employees for from 4 to 20 years. Recently,
the number of employees whom they referred to Respondent
steadily decreased until it stopped completely when the Re-
spondent ceased operating. The unions are entitled to know
whether this was a ‘‘natural death’’ as alleged by Respond-
ent, or whether Bruce and Manny Germinsky were purposely
transferring Respondent’s work to Germinsky Electric em-
ployees in order to pay lower nonunion wages and be more
profitable and/or to get rid of the Unions. The fact that the
Unions, or at least some of them, have known of the exist-
ence of the two companies for many years is no defense
herein. The Unions, apparently, had little cause to complain
in the past because they were referring members to Respond-
ent. However, when that market tightened up, and then dis-
appeared, they had the right to see where that work went,
and why. Brisco Sheet Metal, Inc., supra. Additionally, there
is a difference between knowing that a father owns a non-
union company while his son owns a unionized company and
knowing, or wanting to know, if these companies really oper-
ate as one.
Respondent also defends that since the Unions herein are
8(f) representatives, they are not entitled to information that
they might otherwise be entitled to. Counsel for the Re-
spondent cites no case to support this proposition, nor could
I locate any. Finally, counsel for the Respondent argues that
the Unions herein have known of the connection between the
Respondent and Germinsky for many years, and that the re-
quests herein therefore are not good-faith requests for infor-
mation. Rather, argues the Respondent, these requests were
made in bad faith and were actually part of an overall at-
tempt by these Unions to further their organization of the
Germinsky Electric employees. In support of this argument
Respondent cites NLRB v. Wachter Construction, 23 F.3d
1378 (8th Cir. 1994), which I find is clearly distinguishable.
In that case the contracts provided that the employers could
subcontract their work to nonunion employers as long as they
adhered to contract terms and paid wages and fringe benefits
equivalent to union scale. At about this time, the number of
nonunion employers in the field increased and the Unions
made information requests regarding the subcontractors that
the employers were using. The administrative law judge
found that the union’s real purpose in making these informa-
tion requests was to force these employers to use only union
contractors. The court stated that the real reason for the
unions’ information request was to force the employers to
subcontract only to union firms—not a legitimate purpose
under its contract—and found that in ‘‘the instant case . . .
the union representative sought to overburden the employer
with information requests so as to prevent the employer from
subcontracting any work to nonunion workers, even though
concededly the collective bargaining agreement provided
such subcontracting was permissible.’’ The court concluded:
‘‘The respondent did not commit an unfair labor practice in
failing to provide the bulk of the information requested, be-
cause the union made its request in bad faith. The union’s
bad faith motive in requesting the information alleviated the
employer’s duty to respond.’’ In the instant matter the Re-
spondent alleges that the bad faith on the part of the unions
is that what they really want to do is to organize
Germinsky’s employees. I’m sure that they do; what union
would not want to organize a large number of nonunion em-
ployees? What I fail to see is: where is the bad faith? Re-
spondent’s brief states: ‘‘The fact that these unions now sud-
denly want to question this relationship which the unions
themselves were in agreement with for twenty years, sug-
gests ulterior, bad faith motives.’’ I do not agree. Rather, I
find it more likely that the Unions did not earlier question
this relationship because the Respondent was using their
members and paying money into the Unions’ funds. When
the Respondent ceased its operation, and the Germinsky op-
eration went all nonunion, the Unions decided to question the
connection between the two.
In Island Creek Coal Co., 292 NLRB 480, 489 (1989), the
Board stated that if the only reason for the information re-
quest is harassment, an employer is not required to comply
with the request [emphasis supplied]. Not only is there a lack
of evidence that harassment of Germinsky Electric was the
sole motive for these requests, there is no evidence, only an
inference, that it is a reason. Hawkins Construction Co., 285
NLRB 1313 (1987). The Respondent’s bad-faith defense is
therefore rejected, and I find that its refusal to provide the
requested information violates Section 8(a)(1)(5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent has been engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 269 has been a labor organization within the
meaning of Section 2(5) of the Act.
3. By failing and refusing to respond to the Unions infor-
mation requests made in May and June, the Respondent vio-
lated Section 8(a)(1) and (5) of the Act.
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1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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.
5 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.’’
THE REMEDY
Having found that the Respondent violated the Act as al-
leged in the Complaint, I shall recommend that it cease and
desist therefrom and take certain affirmative action necessary
to effectuate the policies of the Act. In that regard, I shall
recommend that Respondent be ordered to, upon request,
promptly provide the Unions with the information that they
requested in May and June 1995.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, E.J. Alrich Electrical Contractors, Inc.,
Ringwood, New Jersey, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Locals 269, 52,
351, 358, 400, 456, 675, and 743 of the International Broth-
erhood of Electrical Workers, by failing and refusing to fur-
nish these Unions with information that they requested in
May and June 1995, which information is relevant and nec-
essary to these Unions to administer the collective-bargaining
agreements that they have with the Respondent.
(b) In any like or related manner, interfering with, restrain-
ing or coercing employees in the exercise of their rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Furnish to all the unions named above, on request, the
information that they requested in May and June 1995.
(b) Post at its facility in Ringwood, New Jersey, copies of
the attached notice marked ‘‘Appendix.’’5 Copies of the no-
tice, on forms provided by the Regional Director for Region
22, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees 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) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region, attesting to the
steps that the Respondent has taken to comply.
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