Electrical Energy Services, Inc.

National Labor Relations Board - Board Decisions

May 11, 1988

288 N.L.R.B. 925 (N.L.R.B. 1988)

ELECTRICAL ENERGY SERVICES 925
Electrical Energy Services, Inc. and Sheet Metal
Workers International Association, Local Union
No. 49, AFL-CIO. Case 28-CA-8806
May 11, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
BABSON AND CRACRAFT
On January 20, 1988, Administrative Law Judge
Michael D. Stevenson issued the attached decision.
The Respondent filed exceptions and a supporting
brief, the General Counset filed cross-exceptions
and a, statement in support, and the Respondent
filed an answering brief to the General Counsel's
cross-exceptions.
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 briefs and has
decided to affirm the judge's rulings, findings, and
conclusions l and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Electrical
Energy Services, Inc., Farmington, New Mexico,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
In adopting the judge's decision, we find that the Respondent did not
establish that compliance with the Union's request for information was
unduly burdensome. Aside from the Respondent's bare assertion in its
April 10, 1987 letter to the Union some 3-1/2 months after the Union's
initial request for the information that the request was "burdensome and
oppressive" the Respondent failed to present any evidence to support its
claim that the request was burdensome Thus, the information, which we
agree is relevant and necessary for the Union to properly perform its
duties, must be provided to the Union. To the extent that costs and bur-
dens are incurred in the provision of this information, the allocations of
such costs can be resolved at the compliance stage of the proceeding. See
Minnesota Milting Co. 261 NLRB 27 (1982), enfd sub nom. Oil Workers
Local 6-418 v. NLRB, 711 F.2d 348, 363 (DC Cm. 1983)
2 The Respondent in its exceptions contends that the judge erred in
failing to specifically consider whether each of the requests in the
Union's questionnaire was for relevant information We have reviewed
the questionnaire in its entirety and find that each request was for infor-
mation which is relevant to and necessary for the Union's performance of
its function as the exclusive collective-bargaining representative of the
employees m the unit.
Louis S. Harris, Esq., for the General Counsel.
George Cherpelis and Timothy L. Salazar, Esqs. (Cherpelis
& Associates), of Albuquerque, New Mexico, for the
Respondent.
John L. Hollis, Esq. (Kool, Kool, Bloomfield & Hollis), of
Albuquerque, New Mexico, for the Charging Party.
_ 288 NLRB No. 108
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge.
This case was tried before me at Albuquerque, New
Mexico, on 20 October 1987, 1 pursuant to a complaint
issued by the Regional Director for the National Labor
Relations Board for Region 28 on 5 June and which is
based on a charge filed by Sheet Metal Workers Interna-
tional Association, Local Union No. 49, AFL-CIO (the
Union) on 29 April. The complaint alleges that Electrical
Energy Services, Inc. (EESI or Respondent) has en-
gaged in certain violations of Section 8(a)(1) and (5) of
the National Labor Relations Act.
Issue
Whether Respondent has refused to furnish to the
Union certain requested information that is relevant to
and necessary for the Union's performance of its function
as the exclusive collective-bargaining representative of
the employees in the unit.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.2
On the entire record of the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent admits that it is a New Mexico corpora-
tion engaged in the business of industrial construction
and maintenance and having an office and place of busi-
ness located in Farmington, New Mexico. It further
admits that during the past year, in the course and con-
duct of its business, it has purchased and received prod-
ucts, goods, and materials valued in excess of $50,000 di-
rectly from sources outside the State of New Mexico. It
further admits that during the past calendar year, in the
course and conduct of its business operations, it has per-
formed services valued in excess of $50,000 in States
other than the State of New Mexico. Accordingly, it
admits, and I find, that it is an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Sheet Metal Work-
ers International Association, Local Union No. 49, AFL-
CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
1 All dates refer to 1987 unless otherwise indicated.
2 Throughout the transcript, I am referred to as "Hearing Officer." I
restore my proper title as "Judge Stevenson."
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
HI. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
On 29 December 1986, George Gilliland, business rep-
resentative for the Union, sent to Thomas D. Akins, an
official of Respondent, a document entitled "Question-
naire and Request for Documents" (G.C. Exh. 3). Con-
sisting of 50 questions, some of which contain multiple
parts, the 7-1/2 page document is published in Appendix
I to this decision. Gilliland, the sole witness at the hear-
ing, testified on behalf of the Genera/ Counsel. Among
other matters covered was the reason for sending the
questionnaire, its origin, and the results. To these and
other matters I now turn.
The Union is party to a collective-bargaining agree-
ment with an employer's organization known as New
Mexico Sheet Metal Contractors Association, Inc. Effec-
tive between 1 April 1986 and 31 March 1988, this agree-
ment binds Respondent and other signatory contractors
(G.C. Exh. 2). Article 10 of the agreement establishes a
grievance procedure, which includes, where necessary, a
Local Joint Adjustment Board (sec. 5, p. 20). When es-
tablished to resolve a grievance, the board consists of
three members of the Union and three members of the
Contractors' Association. Included among Gilliland's re-
sponsibilities were policing of the contract and, if neces-
sary, filing of grievances to enforce its provisions.
In early December, Gilliland received a telephone call
from 0. H. Fredenburg, an official of Sheet Metal Spe-
cialties, a signatory contractor. Fredenburg complained
that EESI had established a nonunion company that had
recently underbid Sheet Metal Specialties and procured a
job that would otherwise have gone to Fredenburg's
company. The name of this nonunion company, Freden-
burg said, was Industrial Mechanical, Inc. (IMI). Because
EESI/IMI could bid both ways, union/nonunion, while
Fredenburg always bid union, this was unfair competi-
tion, Fredenburg continued. He finished by asking Gilli-
land what he intended to do about this matter. Gilliland
said he would look into it.
About an hour later, Gilliland called another signatory
to the contract who, like Sheet Metal Specialties, was lo-
cated in Farmington, New Mexico. This second contrac-
tor was named J. B. Mechanical and Gilliland asked its
official, Joe Briggs, if he had heard anything about the
EESI/IMI connection. Briggs responded that he had
heard a rumor on the street, that he had heard several
people talk about it, and that it was no big secret. Al-
though Briggs also said that he personally did not have
any problems yet, he told Gilliland to check out the
111111Ors.
A short time after this, Gilliland talked by telephone
with still a third signatory from the same area, Earl
Sury, an official of Western Power. Like Fredenburg,
Sury called Gilliland to complain that he had lost a job
because of the EESI/IMI connection. Sury told Gilliland
that he had complained to both the Plumbers' and Elec-
tricians' unions and he wanted Gilliland as well to inves-
tigate the matter.
In mid to late December, Gilliland attended a routine
meeting of the Building Trades Council where represent-
atives of the building trades unions met to discuss mutual
problems. After Gilliland raised the matter of EESI/IMI,
all or most of the business agents of the other unions in-
dicated they had heard of the connection. More specifi-
cally, the business agent for the Carpenters announced
his intention to file a grievance; the business agent for
the Pipefitters said he was going to take up the matter
with his International union; other business agents prom-
ised to make their own investigation. Then at either this
meeting or at a second December meeting of the Build-
ing Trades Council, a business agent for the Operating
Engineers named Scott offered Gilliland the use of a
questionnaire to obtain information from EESI/IMI and
to facilitate Gilliland's investigation. Gilliland had it re-
typed on the letterhead of the Union, added a date of 29
December 1986, changed the names of the companies in
issue to Electrical Energy Services, Inc. and to Industrial
Mechanical, Inc., changed the project name to San Juan
Power Plant, near Waterflow, New Mexico, added a
final paragraph explaining why the information was
needed, and then mailed it to Thomas Akins (G.C. Exh.
3).
Meanwhile, Sury was equally busy. On 30 December
1986, he mailed to Gilliland a letter with attachments
that the latter received about 2 January. The letter reads
as follows:
12/30/86
Sheetmetal Workers Union Local #49
4400 Silver Ave. S.E.
Albuquerque, New Mexico 87108
Attn: Jeep Gilliland
Subject: Industrial Mechanical, Inc.
Gentlemen;
On or about December 18, 1986, WESTERN
POWER SERVICE AND CONSTRUCTION
COMPANY, INC. bid on a job at the San Juan
Power Plant to do work that consisted of "Insula-
tion and Lagging in Dead Air Space (Unit #1)."
The job was awarded to a nonunion arm of
E.S.S.I., Inc. [sic] WESTERN POWER SERVICE
AND CONSTRUCTION COMPANY, INC. feels
the bid by the above subject contractor was in vio-
lation of the Sheetmetal Workers' Union Contract
and constituted unfair competition to WESTERN
POWER SERVICE AND CONSTRUCTION
COMPANY, INC., and requests your help in cor-
recting this unfair competition.
Sincerely,
Western Power Service and
Construction Company, Inc.
/s/ Earl Sury
Earl Sury, President
[G.C. Exh 12]
The other documents enclosed with the letter constitute
a job assignment to IMI and list the contractor's name as
Tom Akins (G.C. Exh. 12). Another document in the
package is a letter on IMI letterhead to Public Service
Company of New Mexico, apparently signed by Tony
Burns as "Superintendent," and dated 18 December
ELECTRICAL ENERGY SERVICES 927
1986. This is significant because Burns is known to Gilli-
land as a longtime superintendent for EESI.
After receiving the Sury letter, Gilliland called Sury
to assure him that he was looking into the matter. Then
as part of his continuing investigation, Gilliland went to
the various state agencies that regulate contractors in
New Mexico. On 6 January, a state official prepared for
Gilliland three affidavits: First, it was reported that
EESI, through its qualifying parties, Thomas D Akins
Jr, and Tom Akins, currently hold certain state contrac-
tor licenses (G.C. Exh. 13). Second, it was reported that
IMI, through its qualifying party, Thomas D. Akins Jr.,
currently holds certain state contractor licenses (G.C.
Exh. 14). Finally, it was reported that according to state
records, Thomas D. Akins Jr. is a qualifying party for
Electrical Energy Services, Inc. and for Industrial Me-
chanical, Inc. (G.C. Exh. 15). Under state law, a qualify-
ing party is one who holds a 50-percent or greater inter-
est in a given company.3
In addition to the above documents, Gilliland obtained
additional state records:
(1) Corporate documents for Perkins Construc-
tion Company later changed to EESI (G.C. Exh.
16).
(2) List of EESI Corporate Officers for 1984
(Shows Thomas D. Akins as Registered Agent, as
President and as Director) (G.C. Exh. 17).
(3) Corporate document's for Industrial Mechani-
cal, Inc. (Shows Tom D Akins as Registered
Agent, as an incorporator, and as director. Also
shows that besides Akins, many of the directors for
both corporations are the same) (G.C. Exh. 18).
(4) List of IMI Corporate Officers for 1985
(Shows Tom D Akins as Registered Agent, as
President, and as Director. Other IMI officers same
as for EESI; other IMI directors also same, with
one change (Shows IMI street address same as for
EESI)F4 (G.C. Exh. 19).
(5) List of IMI Corporate Officers for 1986
(Shows officers and directors same as for preceding
year) (G.C. Exh. 20).
(6) Certificates of Insurance for Workman's Com-
pensation (Shows EESI, 4/1/85 to 4/1/86; IMI,
11/1/86 to 11/1/87 (G.C. Exh 21).
After obtaining the above records from the State of
New Mexico, Gilliland sent a followup letter to EESI,
dated 16 January, noting that no answer had been re-
ceived to the questionnaire dated 29 December 1986 and
requesting a reply (G.C. Exh. 4).
On 27 January, Hugh Taylor, a project manager for
Western Power Service, sent a letter to Attorney John
Hollis c/o union headquarters. The letter reads as fol-
lows:
3 Sec. 101 01F, State of New Mexico Construction Industries Division
Rules and Regulations (Mar 3, 1985), R. p. 92 (C.P Exh. 1).
4 The telephone numbers for the two companies were also similar,
feting only in the last two digits. Gilliland called both numbers in Janu-
ary and the same person answered both calls in the same way, "Hello,
contracting."
January 27, 1987
LN # 1923
Mr. John Hollis
C/O Sheet Metal Worker's International Assoc.
4400 Silver S.E.
Albuquerque, New Mexico 98108
Mr. Hollis;
On the morning of December 17, 1986, I attend-
ed a routine job walk at the PNM Power Plant.
Present were:
Mark Williams PNM Planner
Tom Rapp PNM Contracts
D. Brumbelow Normally representing
MMC, Inc.
H. Taylor Normally representing
WPS, Inc.
T. Burns Normally representing
EESI, Inc.
Workscope was discussed and then the siet [sic]
of the work inspected.
On the afternoon of that same day, the bids were
submitted. On December 18th, Nancy Wood (West-
ern Power Service secretary) received a phone call
from Jeanette Vigil, (Tom Rapp's secretary) inform-
ing us the [sic] IMI was awarded the contract.
Nancy Wood asked Jeanette who IMI was and was
told "Industrial Mechanical, Inc."
On Wednesday, December 31st a truck with the
EESI logo on it was seen at the worksite with one
of two blue hard hat employees driving it. They
proceeded to accomplish the work scope in the pre-
viously mentioned walkdown.
They entered & left EESI's jobsite office on oc-
casions and appeared to be taking direction from T.
Burns, the only EESI/IMI superintendent seen on
the site.
If you have any questions, please advise.
Sincerely,
Western Power Service &
Construction Co., Inc.
/s/ Hugh E. Taylor
Hugh E. Taylor,
Project Manager
xc: Earl Sury, President
File [G.C. Exh. 22]
In addition to receiving reports of EESI trucks, trailer,
and equipment at the San Juan Generating Plant site,
Gilliland himself made similar observations there and at a
second jobsite located at Shiprock High School. At both
sites, Gilliland was informed by unnamed persons on the
site that IMI employees were performing the mechanical
work, i.e., plumbing and sheet metal work. Gilliland did
not recognize any members of his local union working
on either project although a provision of the labor agree-
ment provides for a hiring hall procedure.
By 3 February, Gilliland still had received no response
to the 29 December questionnaire nor to the followup
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
letter of 16 January. Accordingly on 3 February, he sent
a second copy of the questionnaire to EESI/IMI togeth-
er with a cover letter of explanation (G.C. Exh. 5). Fi-
nally, on 18 February, and again on 9 March, Respond-
ent's attorneys replied to Gilliland's letter of 3- February.
These two letters read as follows:
February 18, 1987
Mr. George "Jeep" Gilliland
Sheet Metal Workers' International Assoc.
4400 Silver SE
Albuquerque, New Mexico 87108
RE: Electrical Energy Services, Inc.
Dear Mr. Gilliland:
Electrical Energy Services, Inc. has referred
your February 3, 1987 request for information to
this firm for handling. As soon as we have reviewed
your request and discussed the matter with our
client, we will respond accordingly.
Please call if you have any questions.
Very truly yours,
Cherpelis and Associates, P.A.
/s/ Timothy L. Salazar
Timothy L. Salazar
cc: Tom Akins [G.C. Exh 6]
March 9, 1987
Mr. George Gilliland
Business Representative
Sheet Metal Workers' International Association
4400 Silver S.E.
Albuquerque, New Mexico 87108
RE: Electrical Energy Services, Inc./Industrial Me-
chanical, Inc.
Dear Mr. Gilliland:
This letter will serve as a response to your Feb-
ruary 3, 1987 request for information. You state in
the February 3 letter that the information requested
is needed so that you "may ascertain if there has
been any violation of the agreement between Sheet
Metal Workers International Association Local
Union #49 and Electrical Energy Services, Inc."
Accordingly, the above referenced entities will not
provide the requested information for the reasons
set forth hereunder.
First, the information sought is not relevant to
the Union's fulfillment of its statutory duties as the
exclusive bargaining representative of EESI's em-
ployees. The Union has the burden of establishing
the relevance of the requested information. The
Union has not met this burden. Secondly, the
Union's allegation that the information is needed so
it "may ascertain if there has been any violation of
the agreement" is not supported by any objective
facts. Specifically, the Union has failed to identify
how EESI may have violated the relevant agree-
ment, and the specific provision(s) of agreement al-
leged to have been violated. Finally, there is no
pending grievance or arbitration to which the re-
quested information may pertain.
Please call if you have any questions.
Very truly yours,
Cherpelis & Associates, P.A.
/s/ George Cherpelis
George Cherpelis [G.C. Exh. 7]
On 12 March, the Union's attorney replied as follows
to the above letters:
March 12, 1987
George Cherpelis, Esq.
Cherpelis and Associates
4001 Indian School Road NE, Suite 120
Albuquerque, New Mexico 87110
RE: Electrical Energy Services, Inc. and Indus-
trial Mechanical, Inc.
As you know, this law firm represents Local
Union No. 49 of the Sheet Metal Workers Interna-
tional Association. Your letter dated March 9, 1987,
regarding the above has been referred to the under-
signed. Please refer to the prior letters sent to your
client(s) by Local 49 dated December 29, 1986, Jan-
uary 16, 1987, and February 3, 1987.
The information requested is clearly relevant in
order to determine whether Electrical Energy Serv-
ices, Inc. (herein "EESI") and Industrial Mechani-
cal, Inc. (herein "IMI") constitute either a single
employer or alter ego companies. If so, then EESI
may well have violated its collective bargaining
agreement with Local 49 by refusing and failing to
apply all of the terms and conditions of by that con-
tract to its operations under its alter ego, namely
IMI. The information sought is certainly relevant to
the Union fullfilling [sic] its duties as the exclusive
bargaining representative of EESI's employees, in-
cluding those of the apparent alter ego, 1MI.
Local 49 has a reasonable and objective basis for
believing that EESI and IMI constitute alter ego
companies or a single employer. Thus, Local 49 has
received a written complaint from a competitor of
EESI that a certain job was awarded to "a non-
union arm" of EESI. Local 49 also has a written
statement that a usual representative and supervisor,
Tony Burns, of EESI has been and is performing
work for IMI and that on a job awarded to IMI, an
EESI truck was on the job site. Local 49 is also
aware that EESI and IMI have the same address
and thus the same office, a rotating line telephone
number and the same yard. Local 49 also has photo-
graphs indicating the equipment of the union com-
pany on the non-union project site.
Documents filed with the State Corporation
Commission indicate that both corporations have
the same registerd [sic] agent and address, the same
officers, nearly the same directors, and the same
office. Moreover, affidavits from the New Mexico
Construction Industries Division, Regulation and
Licensing Department show that both companies
ELECTRICAL ENERGY SERVICES 929
have the same qualifying party, Thomas D. Akins,
Jr., who therefore must own 51% of both compa-
nies. The affidavits further show that both compa-
nies hold the same types of licenses and thus, are
engaged in the same kind of work namely, GB-98-
General Building, MM-98-General Mechanical, and
EE-98-General Electrical.
As you should already be aware, current law
does not require that any grievance be presently
pending. The case law is crystal clear that the infor-
mation sought must be produced and without delay.
Accordingly, have your client provide the request-
ed information within two weeks from the date of
this letter or an appropriate charge will be filed
with the National Labor Relations Board.
Very truly yours,
Kool, Kool, Bloomfield & Hollis, P.A.
By: /s/ John L. Hollis
JLH/de
cic Sheet Metal Workers Local 49
[G.C. Exh. 8]
On 19 March, Attorney Salazar answered Attorney
Hollis to say in pertinent part that "We will be forward-
ing information as soon as it is compiled" (G.C. Exh. 9).
On 10 April, Respondent's attorney replied as follows:
April 10, 1987
HAND-DELIVERED
Mr. John Hollis
'Kool, Kcal, Bloomfield & Hollis
1516 San Pedro NE
Albuquerque, New Mexico 87110
RE: Electrical Energy Services, Inc./Industrial Me-
chanical, Inc.
Dear Mr. Hollis:
This will serve as a response to Mr. Gilliland's
request for information dated February 3, 1987. The
above referenced companies maintain that the infor-
mation sought is not relevant to the Union's fulfill-
ment of its statutory duties as the exclusive bargain-
ing representative of EESFs employees. Moreover,
responses to many of the questions would require
disclosure of confidential or proprietary information
of either or both companies. Additionally, the re-
quest is unduly burdensome and oppressive. With-
out waiving any of these defenses to the Union's re-
quest for information, the following information is
provided:
Electrical Energy Services, Inc. is identified
below as "EESI" and Industrial Mechanical, Inc. is
identified as "IMI." The numbers below correspond
with the questions set forth in Mr. Gilliland's letter
of February 3, 1987.
1. EESI: Industrial construction and maintenance
"MI: Merit Shop, industrial and commercial con-
struction and maintenance
2. EESI: New Mexico
IMI: New Mexico
3. a) EESI: Utah, Arizona, New Mexico and Col-
orado; License numbers: Utah-A100; #35109-8;
Arizona-application filed; New Mexico-GB 98;
MM-98, EE 98; #18167. IMI: New Mexico and Ar-
izona; License numbers: New Mexico-GB 98,
MM-98, EE 98; #25486
b) EESI: P.O. Box 1980, Farmington, New
Mexico
IMI: P.O. Box 2408, Farmington, New Mexico
c) EESI: (505) 325-5003, 325-5004
IMI: (505) 325-5005
d) Irrelevant and immaterial
4. Irrelevant, immaterial and unduly burdensome
and oppressive,
5. See response to question No. 4.
6. See response to question No. 4.
7. None
8. a) EESL 85-0224398
IMI: 85-0336953
b) EESI: 01-787644-003
IMI: 02-045500-003
9. Irrelevant, immaterial and relates to proprie-
tary and confidential information of either or both
the companies.
10. See response to question No. 9.
11. IMI leases office space, supplies and equip-
ment from EESI pursuant to a written lease agree-
ment. The specific terms of the lease agreement are
confidential and also relate to proprietary informa-
tion.
12. None.
13. See response to questions Nos. 4 and 9. Any
of the referenced services provided by one compa-
ny to the other would be pursuant to a written
agreement.
14. None
15. None
16. See response to question No. 9.
17. EESI: All bids are under the signature of
Tom Akins, President
IMI: All bids are under the signature of William
Harris, Vice President
18. See response to question No. 9.
19. See response to question No. 9.
20. See response to question No. 9.
21. None
22. None
23. None
24. None
25. See response to question No. 4.
26. See response to question Nos. 4 and 9.
27. None
28. Vague
29. See response to question Nos. 4 and 28.
30. See response to question Nos. 4 and 28.
31. See response to question No. 4.
32. See response to question No. 4.
33. See response to question No. 4.
34. EESI-employee wage rates established by
applicable collective bargaining agreements.
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
IMI—does not have an identifiable compensation
program. Wage rates are established on a project by
a project basis.
35. EESI—dictated by applicable collective bar-
gaining agreements.
IMI—None
36. EESI—the Union should have this informa-
tion at its disposal.
IMI—no written labor relations policies.
37. EESI—Tom Akins
IMI—William Harris
38.EESI—State Contractor's Association
IMI—None
39. Irrelevant and immaterial.
40. See response to question Nos. 4 and 28.
41. See response to question Nos. 4 and 28.
42. None
43. None
44. None
45. See response to question No. 9. Dates formed:
EESI: May 6, 1973
IMI: September, 1985
46. See response to question No. 4.
IMI—None
47. See response to question No. 4.
48. No occasion.
49. See response to question Nos. 4 and 9.
50. See response to question Nos. 4 and 9.
Please call if we can be of further assistance.
Very truly yours,
Cherpelis & Associates, P.A.
/s/ Timothy L. Salazar
Timothy L.Salazar [G.C. Exh. 101
On 16 June, Respondent's attorney provided still addi-
tional information to Attorney Hollis. This letter reads as
follows:
June, 16, 1987
Mr. John Hollis
Kool, Kool, Bloomfield & Hollis
1516 San Pedro NE
Albuquerque, New Mexico 87110
RE: Electrical Energy Services, Inc. and Industrial
Mechanical, Inc. / NLRB Case No. 28-CA-8806
Dear Mr. Hollis:
This will serve as a follow up to our telephone
conference of June 4, 1987 regarding the above ref-
erenced matter. As you were advised, Industrial
Mechanical, Inc. ("IMI") only bids on projects
where non-union contractors are solicited. The fol-
lowing is a complete list of clients currently served
by IMI:
1. Plains Electric Generation & Transmission
Cooperative, Inc. Escalante Station
P.O. Box 577
Prewitt, NM 87045
2. Conoco, Inc.
San Juan Basin Gas Plant
P.O. Box 3070
Bloomfield, NM 87413
3. CDK Contracting Company
800 South Hutton
Farmington, NM 87401
4. Mobil Corporation
P.O. Box 778
Farmington, NM 87499
5. Meridian Oil Company
3535 E. 30th
Farmington, NM 87401
The above referenced companies specifically solicit-
ed bids from non-union contractors. While Arizona
Public Service Company and Public Service Com-
pany of New Mexico accept bids from non-union
contractors, IMI does not bid on these projects in-
sofar as Electrical Energy Services, Inc. (8ESI)
submits bids on projects of these companies.
As we discussed, IMI only bids on projects
where EESI cannot bid. Accordingly, EESI is not
losing work as a result of the existence of IMI.
Please call so we can discuss settlement of the in-
stant unfair labor practice charge.
Very truly yours,
Cherpelis and Associates, P.A.
/s/ Timothy L. Salazar
Timothy L. Salazar [G.C. Exh 11]
Although the lawyers were exchanging letters as re-
flected above, Akins 5 was invited to and did appear at a
meeting of the Building Trades Council in March. Al-
though there, he made certain statements. For example,
in answer to why he opened a nonunion company, he
said many of his customers would not permit him to
compete with a union company by submitting bids. So
he was not going to sit still and let matters go downhill
As to the origins of the name IMI, there was no particu-
lar significance to it. As to his job goals, Akins told the
business agents that he intended to try to get jobs for
EESI first and if that was not possible, he would bid
lower on behalf of IMI due to lower labor costs. He as-
sured them, however, that he would not undercut on ev-
erything. Akins said he would maintain control and tell
IMI what jobs to bid on. As to the San Juan Generating
Station, Akins said he would eventually bid on jobs
there, but that it would take about a year to get in. Fi-
nally, Akins said he intended to bid on a job at Plains,
New Mexico, and would hire union members to work
for IMI as he was confident they would work for what-
ever he paid.
5 Despite small variations in Akins' name on the state documents de-
scnbed above, all references are apparently to the same person, Thomas
D. Akins.
ELECTRICAL ENERGY SERVICES

931
B. Analysis and Conclusions
, 1. Should the General Counsel's subpoena duces
tecum be enforced?
Prior to hearing, the General Counsel served on Re-
spondent a subpoena duces tecum attempting to obtain
each and every document placed in issue by the com-
plaint (G.C. Exhs. 1(1) and (m)). Subsequently, Respond-
ent filed a petition to revoke (G.C. Exh. 1(n)). I declined
to rule at hearing on the petition, and indicated that I
would consider the matter when writing my decision.
In Board proceedings, enforcement of a subpoena is
discretionary. NLRB v. Adrian Belt Co., 578 F.2d 1304,
1310 (9th Cir. 1978). Board regulations provide that a
subpoena may be revoked if for a "reason sufficient in
law, the subpoena is otherwise invalid." 29 CFR Sec.
102.31(b) (1986).
In the instant case, the General Counsel is attempting
to use the subpoena duces teem as a substitute for the
Board order sought by the complaint. Not only is this
procedure improper, but it is an abuse of the subpoena
power because it would undercut the statutory require-
ment for an unfair labor practice hearing where the ulti-
mate issue to be decided is whether the General Counsel
is entitled to the information in question.
In light of the above, it is unnecessary to consider
whether the petition to revoke was not timely filed as
argued by the General Counsel. Even if the petition was
not timely filed, I would, on motion of the administrative
law judge, revoke the subpoena duces tecum because of
the manifest improper purpose it seeks to achieve.
Accordingly, Respondent's petition to revoke the Gen-
eral Counsel's subpoena duces tecum B-472475 is grant-
ed' and the subpoena is revoked.
2. Is the Respondent required to answer the Union's
questionnaire?
I begin with some basic legal principles that are not
subject to dispute. In Transcript Newspaper, 286 NLRB
124 (1987), the judge stated the following that was af-
firmed by the Board:
An employer's duty to bargain in good faith in-
cludes the obligation to provide information needed
by a bargaining agent for the proper performance of
its duties. NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956). The right to receive information arises by
operation of the Act itself, upon an appropriate re-
quest and the scope of the right is limited only by
considerations of relevancy. Ellsworth Sheet Metal,
Inc., 224 NLRB 1505, 1507 (1976). In Bohemia, Inc.,
272 NLRB 1128, 1129 (1984), the Board observed:
. . . an employer must provide a union with
requested information "if there is a probability
that such data is relevant and will be of use to
the union in fulfilling its statutory duties and re-
sponsibilities as the employees' exclusive bargain-
ing representative." Associated General Contrac-
tors of California, 242 NLRB 891, 893 (1979),
enfd. 633 F.2d 766 (9th Cir. 1980); NLRB v.
Acme Industrial Co,, 385 U.S. 432 (1967). The
Board uses a liberal, discovery-type standard to
determine whether information is relevant, or po-
tentially relevant, to require its production.
NLRB v. Truitt Mfg. Co., supra. Information
about terms and conditions of employment of em-
ployees actually represented by a union is pre-
sumptively relevant and necessary and is required
to be produced. Ohio Power Co., 216 NLRB 987
(1975), enfd. 531 F.2d 1381 (6th Cir. 1976).
Requested information that is not so apparently
related to a union's bargaining obligations is not
presumptively relevant. In such situations, there
must be a demonstration of relevance. NLRB v.
Rockwell Standard Corp., 410 F.2d 953, 957 (6th Cir.
1969). Information not presumptively relevant,
nonetheless may have "an even more fundamental
relevance than that considered presumptively rele-
vant." Prudential Insurance Co. of America v. NLRB,
412 F.2d 77, 84 (2d Cir. 1969). Not all relevant in-
formation need be disclosed. If the information is of
a confidential nature, it may be withheld until ap-
propriate safeguards are provided. Detroit Edison
Co. v. NLRB, 440 U.S. 301, 314 (1979).
See also Hawkins Construction Co., 285 NLRB 1313
(1987).
In Pence Construction Co., 281 NLRB 322 (1986), the
Board affirmed a decision in a case similar to that at bar.
The judge wrote:
The Board has held that information requested
by a union of an employer concerning the existence
of a double-breasted or alter-ego operation falls into
the category of information which is not presump-
tively relevant. [Citations omitted.] . . . To satisfy
its burden, the union must show that it had a rea-
sonable belief that enough facts existed to give rise
to a reasonable belief that the two companies were
in legal contemplation a single employer. [Citations
omitted.] 6
Finally, it is helpful to consider still additional princi-
ples as stated by the Board in W. L. Molding Co., 272
NLRB 1239, 1240 (1984):
[I]t is not the Board's function in this type of case
to pass on the merits of the Union's claim that Re-
spondent breached the collective bargaining agree-
ment or . . . committed an unfair labor practice.
NLRB v. Rockwell-Standard Corp., 410 F.2d at 957.
Thus, thc union need not demonstrate actual in-
stances of contractual violations before the employ-
er must supply information. Boyers Construction Co.,
267 NLRB 227, 229 (1983). Nor must the bargain-
ing agent show that the information which trig-
6 "Double-breasted" describes a contractor who operates two compa-
nies, one unionized and the other open shop Watt Electric, 273 NLRB
655, 657 fn. 11 (1984). "Alter-ego" describes two employers having sub-
stantially identical ownership, management, business purpose, nature of
operations, equipment, customers, and supervision. Electrical Workers
IBEW Local 3 (Telecom Plus), 286 NLRB 235 (1987).
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gered its request is accurate, nonhearsay, or even
ultimately reliable. Ibid. The Board's only function
in such situation is in acting upon the probability
that the desired information was relevant, and that
it would be of use to the union in carrying out its
statutory duties and responsibilities. NLRB v. Rock-
well-Standard Corp., 410 F.2d at 957 quoting NLRB
v. Acme Industries Co., 385 U.S. at 437. Accord:
General Motors v. NLRB, 700 F.2d at 1088. [Fn.
omitted.]
I find first that the Union acted in good faith because
its asserted reason for requesting information can be jus-
tified. Hawkins Construction Co., 285 NLRB 1313, supra.
Thus, Gilliland was gathering information to decide
whether a grievance should be filed with the Joint Ad-
justment Board as provided for in the collective-bargain-
ing agreement (G.C. Exh 2). Gilliland even described
the possible violations of the agreement that might be al-
leged: hiring hall procedures, trust fund provisions,
bonding provisions, and misassignment of work (R. Exh.
170). I further note that the Union demonstrated good
faith by informing Respondent in its initial questionnaire
why the information was desired (see final par., G.C.
Exh. 3, App. I). The Board, however, has held that even
where the Union fails to state the basis for its request,
the Union does not forfeit its right to relevant informa-
tion. Barnard Engineering Co., 282 NLRB 617 (1987).
Not only has good faith been demonstrated, but rel-
evance as well. The evidence developed by Gilliland and
reviewed in the facts portion of this decision shows a
business relationship between EESI and IMI, the effects
of which may constitute one or more violations of the
labor agreement. Under Board law, the Union is entitled
to explore further the extent of this relationship.
In Realty Maintenance, 265 NLRB 1352 (1982), the
Board was also faced with a similar question involving
the relationship between Respondent and two other com-
panies. Similar kinds of information were requested by
the Union to determine whether the Respondent was
violating the subcontracting provision of the agreement.
The Board ordered the Respondent to provide the re-
quested information. See also Pertec Computer Corp., 284
NLRB 810 (1987); and Dahl Fish Co., 279 NLRB 1084
(1986).
The case of Proctor Mechanical Corp., 279 NLRB 201
(1986), also supports the Union's request for information
in this case. At page 18 of its brief, Respondent attempts
to distinguish the, case by noting that the Respondent in
Proctor did not reply at all to the Union's 27-question re-
quest for information, while in the instant case, Respond-
ent did provide some information. I reject Respondent's
attempt to distinguish Proctor and find that it fully ap-
plies to the instant case.
In light of the ample evidence of good faith and rel-
evancy in this case, it is not surprising that Respondent
argues in the alternative (Br. 17-19), that it has already
provided the Union with a full response to its question-
naire. This claim, like others made by Respondent, must
fail. Notwithstanding Respondent's characterization of its
answer to the Union, as a "Full Response" (Br. 17, par.
c), in the text of its argument, it refers to answers to
"more than half of the questions." I have published Re-
spondent's written response to the Union (G.C. Exhs. 10
and 11) in the facts portion of this decision and they
need not be repeated. Assuming without finding that Re-
spondent has provided some of the information request-
ed, I fail to see how this partial effort would defeat the
Union's right to the additional relevant information to
which it is entitled. More importantly, as a result of the
Board's Order in this case, it is possible that the informa-
tion already provided may need to be supplemented lest
Respondent avoid its legal obligations under Board law.
In conclusion, I find that it is unnecessary to cover the
questionnaire point by point as I have found the informa-
tion requested is relevant. Respondent's duty was to fur-
nish as promptly as practical any information properly
requested. Aero-Motive Mfg. Co., 195 NLRB 790, 792
(1972). Respondent did not comply with this rule.
To the extent that Respondent's letter of 10 April
(G.C. Exh. 10) raises certain defenses that are not fully
developed in its brief, I note the following. To the extent
Respondent validly raises a defense of confidentiality, it
must offer to bargain with the Union to accommodate
their respective interests. Tritac Corp., 286 NLRB 522
(1987). To the extent Respondent contends that the
Union should already have the requested information at
its disposal, the Board has said, "Absent special circum-
stances, a union's right to information is not defeated
merely because the union may acquire the needed infor-
mation through an independent course of investigation."
Kroger Co., 226 NLRB 512, 513 (1976). See also New
York Times Co., 265 NLRB 353 (1982). To the extent
Respondent claims that the Union's request was too bur-
densome, this is a matter which can be resolved, if neces-
sary, at the compliance stage of the proceeding. Tritac
Corp., supra, citing Chemical Workers Local 6-418 v.
NLRB, 711 F.2d 348, 363 (D.C. Cir. 1983).
For the reasons stated above, I conclude that Re-
spondent has violated Section 8(a)(1) and (5) of the Act
by refusing to provide the Union with the information
requested in the questionnaire of 29 December 1986
(G.C. Exh. 3, App. I).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Sheet Metal Workers International Association,
Local Union No. 49, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. The bargaining unit described below is an appropri-
ate unit for collective bargaining within the meaning of
Section 9(b) of the Act:
All employees of the Employer engaged in, but
not limited to, the
(a) manufacture, fabrication, assembling, han-
dling, erection, installation, dismantling, condition-
ing, adjustment, alteration, repairing and servicing
of all ferrous or non-ferrous metal work, and all
other materials used in lieu thereof and of all air-
veyor systems and air handling systems, regardless
ELECTRICAL ENERGY SERVICES 933
of material used including the setting of all equip-
ment and all reinforcements in connection there-
with;
(b) all lagging over insulation and all duct lining;
(c) testing and balancing of all air handling equip-
ment 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
drawings or sketches; and,
(e) all other work included in the jurisdiction
claims of Sheet Metal Workers' International Asso-
ciation.
4. By failing and refusing to provide the Union with
the information requested in the questionnaire contained
in Appendix I to this decision, since 2 January 1987, Re-
spondent unlawfully refused, and is refusing, to bargain
in violation of Section 8(a)(5) and (1) of the Act.
5. The above unfair labor practices affect commerce
within the meaning of the Act.
THE REMEDY
Having found Respondent engaged in an unfair labor
practice, I find it necessary to order it to cease and desist
and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The order will require Respondent to furnish the
Union with answers to the questionnaire published in
Appendix I to this decision.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 7
ORDER
The Respondent, Electrical Energy Services, Inc.,
Farmington, New Mexico, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively and in good faith
with Sheet Metal Workers International Association,
Local Union No. 49, AFL-CIO by refusing to provide
the Union with answers to the questionnaire published in
Appendix Ito this decision.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish on request to Sheet Metal Workers Inter-
national Association, Local Union No. 49, AFL-CIO the
answers to the questionnaire published in Appendix I to
this decision.
(b) Post at its facilities at Farmington, New Mexico,
copies of the attached notice marked "Appendix."8
7 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
8 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 Nation.
Copies of the notice, on forms provided by the Regional
Director for Region 28, after being signed by the Re-
spondent's authorized representative of Electrical Energy
Services, Inc., shall be posted by the Respondent imme-
diately on receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees 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) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
al 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"
APPENDIX I
Sheet Metal Workers' International Association
4400 Silver S.E., Albuquerque, New Mexico 87108
Telephone: (505) 266-5878
Local Union No. 49
12-29-86
Dear Mr. Thomas D. Akins:
QUESTIONNAIRE AND REQUEST FOR
DOCUMENTS
For the purposes of answering this questionnaire and
request for documents, the term "company" refers sepa-
rately to Electrical Energy Services, Inc., and Industrial
Mechanical Inc. You are requested to answer each ques-
tion and each request for documents with respect to each
company.
The term "project" refers to the San Juan Power
Plant near Waterflow, New Mexico.
1. Describe in detail the type of business in which each
company engages.
2. List the states in which each company is incorporat-
ed, the dates of incorporation and the name and current
address of each incorporator. State the position, if any,
which each incorporator currently holds and/or has held
with each company and produce copies of all articles of
incorporation for each entity.
3. With respect to each company, state the following:
a. the geographical area in which it does business,
the states in which it is licensed and its license num-
bers;
b. its business address, including all post office
box numbers and office locations;
c. its phone numbers and directory listings;
d. where its accounting, corporate and other
bu[sliness records are kept and the name and cur-
rent address of the custodian(s) of those records.
4. With respect to each company, identify by name,
current address and position held of each stockholder,
officer and director of that company who currently
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
holds or has held any of the following positions with the
other company and state the positions held and the dates
of employments and/or office with each company
(shareholders may be limited to those holding 5% of
more of the outstanding shares):
a. stockholder;
b. employee;
c. officer; or
d. director
5. State whether the companies share or have shared
in common any of the following, and if so, name the
company involved and identify the corporations, firm,
partnership, individual or business shared in common by
its name, current address and a description of its business
relationship to each company:
a. banking institutions;
b. sources of credit;
c. accountants;
d. attorneys;
e. payroll preparers;
f. insurance carriers and/or policies for workers'
compensation;
g. insurance carriers and/or policies for other
health insurance programs;
h. bookkeepers and
i. labor relation consultant(s)
6. Identify all businesses which have engaged in busi-
ness transactions with both companies, albeit at different
times, in each of the following categories and with re-
spect to each, state the name and current address of the
business and the nature, date and dollar value of each
transactions and produce copies of all documents evi-
dencing each transaction:
a. rental, lease, purchase of sale of office space;
b. rental, lease, purchase or sale of office equip-
ment or supplies;
c. rental, lease, purchase or sale of construction
materials or supplies;
d. rental, lease, purchase or sale of construction
equipment or tools.
7. Identify by name and current address every con-
struction firm which has entered into a subcontract,
albeit at the same or different times, with both companies
and state the name and location of the project involved,
the nature of the subcontract and the dates the work was
performed.
8. With respect to each company state:
a. its federal taxpayer identification number;
b. its state taxpayer identification numbers, in-
cluding each number and state.
9. Identify each transfer of funds between the compa-
nies and, with respect to each transfer, state the date and
amount of the transfer and the reason for the transfer.
Produce copies of any documents which set forth the
terms of each transfer.
10. Identify amount(s) involved and date(s) when one
company has performed construction work of any type
with a guarantee of performance by the other company.
Produce copies of all such written guarantees.
11. Identify the calendar period and terms by which
one company provides or has provided office space,
either for rent or for free, to the other company.
Produce copies of all documents which set forth the
terms under which such space is provided.
12. Identify each transaction by which any of the fol-
lowing was transferred from one company to another
company and, with respect to each such transfer, identify
the item transferred, the date of transfer, the dollar value
of the items transferred at the time of transfer and the
terms under which the items were transferred and
produce copies of all documents setting forth the terms
of each transfer:
a. office supplies and/or equipment
b. construction equipment and/or tools; or
c, construction supplies and/or materials.
13. Identify which of the following services that are or
have been provided by one company to another and,
with regard to each service, state the precise nature of
the services rendered, the date(s) on which the services
were rendered, and the terms under which the services
were rendered and produce any written documents set-
ting forth the terms pursuant to which such services are
being or were rendered by one company to the other:
a. administrative
b. bookkeeping
c. clerical
d. detailing
e. drafting
f. engineering
g. estimating
h. managerial
i. pattern making
j. sketching
k. other
14. Identify by name and date every place where both
companies have advertised for customer business (e.g.
trade publications, professional journals, etc.).
15. Identify by name, address, type of business and cal-
endar period and dollar volume of work performed the
customers of each company that have been referred to
the other company and state how and by whom such re-
ferrals were made. Produce copies of all documents in
which such referrals were made.
16. Identify by name, address, type of business and cal-
endar period and dollar volume of work performed for
the customers of each company who are now or were
formerly customers of the other company.
17. Identify those persons who bid and/or negotiate
each company's work by name, current address and em-
ployment position.
18. Identify by customer, calendar period and dollar
volume any job(s) on which both companies have:
ELECTRICAL ENERGY SERVICES 935
a.bid competitively;
b. submitted bids to perform different work on
the same job; or
c. submitted bids to perform either different or
the same type of work on different phases of the
same job(s).
19. State which of the bids identified in response to the
previous question were accepted by the customer and
which company received the work and identify on
which of those jobs one of the companies actually per-
formed or will perform work.
20. Identify by customer, calendar period and dollar
volume any work which one company has subcontracted
to or received by subcontract from the other company.
Produce copies of all such subcontracts.
21. With respect to the subcontracts identified in re-
sponse to the preceding question, state the reason for
each subcontract let by each company.
22. Identify by customer, calendar period and dollar
volume any work which one company was legally obli-
gated to perform but which the other company actually
performed.
23. Identify by customer, calendar period and dollar
volume jobs on which one company has succeeded, or
been succeeded by, the other company.
24. Identify any work which one company performs
on the products of any other company.
25. Identify by name, current address and job title or
craft position each employee who has been employed by
both companies.
26. Identify each instance where one company has
given information to the other company regarding any of
the following and with respect to each instance, state the
nature of the information given, the names and addresses
of the persons giving and receiving the information, the
date on which the information was given and whether
such information was in writing and produce any written
communication transferring or relaying such information.
a. employees;
b. customers;
c. subcontractors;
cll. construction equipment or tools; or
e. construction materials, and supplies.
27. Identify by name, address, job title or craft position
and transfer date those employees transferred between
one company and the other and identify the jobs of each
company on which these employees were working at the
time of transfer and on which they worked after the
transfer.
28. With respect to each job performed by each com-
pany, state which other company would have the capac-
ity to perform that work.
29. State the skills which the employees of each com-
pany are able to perform and whether the other compa-
ny employs or has employed persons with same skills.
30. Identify by name, address, job involved, dates and
position held the supervisory and management personnel
of each company who:
a. have been employed by the other company;
b. have been authorized to supervise the employ-
ees of the other company; or
c. have formulated or effectuated managerial
policies over the other company.
31. Identify by project involved, personnel involved
and date of event any occasion when the personnel of
one company performed a supervisory function over any
employees of the other company.
32.Identify by name, current address and title the rep-
resentatives of each company who have knowledge of,
actively are involved in or authorized or direct the day-
to-day management or operations of the other company.
With respect to each such person, state the name of the
company which employs such person and, with particu-
larity, the person's knowledge or involvement in the
other company's management or operations.
33.Identify by job title, name and address any employ-
ees or other representatives of each company who con-
sult or discuss with personnel of the other company re-
garding the business of that company. As to each such
person, state the nature of their consultations or discus-
sions with the personnel of the other company.
34. Describe each company's compensation program,
including employee wage rates.
35. Describe each company's fringe benefit program,
including the benefits offered, the contributions paid,
who pays the cost or premiums for those benefits, and
the name of each insurance company which administers
and/or provides each fringe benefit.
36.Describe each company's labor relations policy and
list every collective bargaining agreement to which each
company is presently signatory and which would cover
any type of construction work performed in New
Mexico. Produce copies of all such collective bargaining
agreements and all personnel or labor policy manuals
published or distributed by either company.
37.Identify by name, current address and job title the
personnel of each company who establish or otherwise
control labor relations policy for the company and state
whether such employees are or have been employed by
the other company and the date(s) of employment.
38. Identify for each company the employer associa-
tions to which the company belongs.
39.Identify the place(s) and date(s) of each company's
directors meetings over the last five years.
40. Identify which companies were invited to bid on
the project, how they learned of the project and which
company actually submitted a bid for the project.
Produce copies of any invitations to bid any bids submit-
ted.
41. Identify which company or companies solicited
bids from subcontractors for work to be performed on
the project. State the names and current address of each
subcontractor solicited and whether they actually sub-
mitted a bid and to whom the bid was submitted.
Produce copies of any such solicitations to bid and of the
actual bids submitted.
42. Identify any written or oral communications be-
tween the companies regarding any aspect of the bidding
on the project. As to each communication, identify by
name, current address and title the persons who were
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
party to the communication, the date and nature of the
communication and the information which was ex-
changed. Produce copies of any such written communi-
cations.
43. Identify by name, current address and title each
person who is an officer, director or employee of either
company who had contact with the owner of the project
regarding the project. For each such persons identify the
nature of the contact, the date(s) of contact and what
matters were discussed. If there were written communi-
cations, produce copies of them.
44. Identify by name, current address and title each
employee, officer or director of each company who par-
ticipated in the preparation of bid for the project. State
with particularity the nature of the work which the
person performed in connection with preparing the bid.
45. With respect to each company, state the dates on
which the company was formed, the reason why the
company was formed and whether any funds, other
assets or personnel of the other were transferred to the
new company. Produce copies of any document evidenc-
ing or relating to the formation of each company or the
transfer of assets from one company to the other.
46. Set forth an organizational flow chart for each
company showing each officer or managerial employee
and their responsibilities and identify each such officer or
managerial employee by name and title.
47. Identify every person on the organizational flow
charts set forth in response to the previous question who
reports to or is supervised by an officer or employee of
the other company and identify by name, current address
and title the officers or employees of the other company
to whom the person reports or by whom the person is
supervised.
48. State the date, project, amount and the name of the
employee involved for each instance when one company
has paid the wages, payroll taxes, fringe benefit premi-
ums, unemployment expense for any employee of the
other company.
49. State the name and title of any employee of either
company who has participated in or attended any legal
proceeding involving the other company; identify the
proceeding by date and case number and name; and state
the role which each employee played in the proceeding.
50. Identify the annual and shareholder's reports issued
by each company and furnish the same for the last three
calendar or fiscal years.
The above information is needed in order to determine
if Electrical Energy Services Incorporateds' contract
with Sheet Metal Workers' International Association
Local Union #49 has been violated.
Sincerely,
George "Jeep" Gilliland
Business Representative
xc: G. Briggs
Kool, Kool, Bloomfield & Hollis P.A.
APPENDIX II
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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act togeth etr for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT refuse to bargain collectively with
Sheet Metal Workers International Association, Local
Union No. 49, AFL—CIO by refusing to supply it with
answers to the questionnaire published in Appendix I to
this decision.
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, on request of the Union, furnish answers to
the questionnaire published in Appendix I to this deci-
sion.
ELECTRICAL ENERGY SERVICES, INC.