Otay River Constructors

National Labor Relations Board - Board DecisionsDec 14, 2007

351 N.L.R.B. 1105 (N.L.R.B. 2007)

OTAY RIVER CONSTRUCTORS 351 NLRB No. 69 1105 Otay River Constructors and Building Material, Con- struction, Industrial, Professional and Technical Teamsters Union, Local No. 36, International Brotherhood of Teamsters. Case 21–CA–37294 December 14, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On June 5, 2007, Administrative Law Judge James M. Kennedy issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief. The General Counsel filed cross- exceptions and a supporting brief, and the Respondent 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 briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order as modified.1 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Otay River Constructors, Chula Vista, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). “(a) Refusing to provide to the Union, Building Mate- rial, Construction, Industrial, Professional and Technical Teamsters Union, Local No. 36, International Brother- hood of Teamsters, information in its requests dated January 12 and February 7, 2006, which is relevant to performing its role as the bargaining unit employees’ exclusive bargaining agent.” 2. Substitute the following for paragraph 2(a). “(a) Furnish the Union the information requested in the Union’s letters dated January 12 and February 7, 2006.” 3. Substitute the attached notice for that of the admin- istrative law judge. 1 We shall modify the judge’s recommended Order to include the Board’s standard remedial language for the violation found, and we shall substitute a new notice to conform to the language set forth in the Order. 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 has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to provide to the Union, Building Material, Construction, Industrial, Professional and Technical Teamsters Union, Local No. 36, International Brotherhood of Teamsters, information in its requests dated January 12 and February 7, 2006, which is relevant to performing its role as the bargaining unit employees’ exclusive bargaining agent. 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 Union the information requested in the Union’s letters dated January 12 and February 7, 2006. OTAY RIVER CONSTRUCTORS Robert MacKay, for the General Counsel. Mark T. Bennett (Marks, Golia & Finch), of San Diego, Cali- fornia, for the Respondent. Richard D. Prochazka, of San Diego, California, for the Charg- ing Party. DECISION STATEMENT OF THE CASE JAMES M. KENNEDY, Administrative Law Judge. This matter was tried in San Diego, California, on March 26, 2007, based upon a complaint issued by the Regional Director for Region 21 of the National Labor Relations Board (the Board) on No- vember 2, 2006. The complaint is founded upon an unfair labor practice charge filed by Building Material, Construction, Indus- trial, Professional and Technical Teamsters Union, Local No. 36, International Brotherhood of Teamsters (the Union), on May 19, 2006. The complaint asserts that Otay River Con- structors (the Respondent) has violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by refusing to provide certain information to the Union and thereby prevented DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1106 it from carrying out its duties as the exclusive collective- bargaining agent of Respondent’s employees. The parties were given full opportunity to participate, to in- troduce relevant evidence, to examine and cross-examine wit- nesses, and to file briefs. All parties have filed briefs which have been carefully considered. Based upon the entire record of the case,1 as well as my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. JURISDICTION At the hearing the parties stipulated that Respondent at times material is a joint venture comprised of Washington Group International, Inc., and Fluor Daniel, a division of Fluor Enter- prises, Inc., doing business as Otay River Constructors, and has been engaged in the building and construction industry in southern California. They further stipulated that Respondent, having an office in Chula Vista, California, has been engaged in the business of designing and constructing two heavy high- way projects in San Diego County known as (i) the Gap/Connector Project and (ii) the SR 125 Toll Road Project. During the 12-month period ending December 31, 2005, in the course of those projects, it has received goods from outside California valued in excess of $50,000. Accordingly, it admits it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It also admits the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ISSUES This is an information request case. As will be seen below, the Union has a collective-bargaining relationship with Re- spondent. One of the provisions deals with a common feature of heavy and highway construction truckdrivers, the use of individuals who own their own vehicle and operate it on the construction site. These persons are commonly referred to as “owner-operators,” a term which is descriptive but which is not helpful in determining their legal status. In this case, the spark which caught the Union’s attention was Respondent’s use of water tanker drivers whose job was to spray water on the job- sites for earth compaction and dust abatement purposes. They rarely left the project since they were able to obtain tank refills from water towers on or near the project. In any event, their labor is a real component of the construction process and is not the delivery or haulaway of material. The statute draws a dis- tinction between work which is wholly onsite and work related to transportation to and from the site. 1 The General Counsel has filed a motion to correct the transcript in certain respects. The motion is granted. In addition, the transcript inadequately describes the colloquy between myself and counsel, fre- quently resorting to the insertion of a dash (“- -“) as a substitute for dropped words, without explaining why the words were omitted. This does not seem to have occurred with regard to witness testimony. I suspect the omitted words could have been determined had proper effort been made by the transcriber. In any event, the Union filed a grievance 2 concerning the terms and conditions being applied to the onsite owner- operators, asserting that the onsite owner-operators were statu- tory employees whose working conditions are to be governed by the collective-bargaining contract. In order to process the grievance, it also demanded certain information from Respon- dent in order to carry out its duty of employee representation. Respondent at first declined to provide any information what- soever. However, about a year after the first demand, some material was supplied. The General Counsel and the Union assert that the material failed to satisfy the request and was, in any event, untimely. Respondent justifies its lack of response on the ground that the owner-operators are independent contractors and are, first, outside the bargaining unit and second, that such a demand is the enforcement of an illegal contract clause, pointing to Sec- tion 8(e) of the Act. It also asserts that it is an attempt to force business owners, the owner-operators, to join the Union, also barred under 8(e) case law interpretation. Clearly, the Board has held, in a variety of circumstances that owner-operators can be either statutory employees or inde- pendent contractors, depending on the facts in each case. Time Auto Transportation, 338 NLRB 626 (2002) (employees); Teamsters Local 814 (Santini Bros.), 223 NLRB 752 (1976), enfd. 546 F.2d 989 (D.C. Cir. 1976), cert. denied 434 U.S. 818 (1977) (independent contractors). There are many other exam- ples and the cases are entirely fact bound. The question pre- sented by this complaint is whether the Union is entitled to information concerning the legal status of these owner- operators so that it can make a decision concerning what its next step, if any, will be. It is entirely conceivable that the facts it learns through this information will lead it to conclude that the owner-operators are independent contractors; it is equally likely that the information will lead it to conclude that they are statutory employees, entitled to the protection of the collective- bargaining contract. Aware of those varying paths, I concluded that Respondent’s concerns were premature, and barred proof of that issue, determining that it would be best for the informa- tion to first lead wherever it might go. There is no question that the Union has the right to determine whether disputed individu- als are in or out of the bargaining unit.3 Furthermore, the griev- ance process is the appropriate vehicle to inquire about and develop the pertinent facts. Respondent asserts that my preliminary analysis and rulings are error. It has made an offer of proof on the issue and has preserved it for review. I decide here that it should have promptly responded to the information request by either provid- 2 Called a “complaint” under the agreement, but not to be confused with the Regional Director’s complaint. 3 The Board recognizes that “a union's representation responsibilities . . . encompass, among other things, administration of the current con- tract and continual monitoring of any threatened incursions on the work being performed by bargaining unit members.” Detroit Edison Co., 314 NLRB 1273, 1275 (1994). Cf. Magnet Coal, Inc., 307 NLRB 444, 444–445 (1992) (request for information seeking the identities of any persons who performed services for either the respondent or an entity alleged to be its alter ego was relevant to the union's alter ego inquiry), enfd. 8 F.3d 71 (D.C. Cir. 1993). OTAY RIVER CONSTRUCTORS 1107 ing the information or advising why it cannot. The bargaining unit placement issue is to be left for another day and in another forum. III. THE FACTS In August 2002, Respondent and the Union entered into a “memorandum project agreement” covering the Gap Connector and SR 125 toll road highway projects. That agreement adopted the terms of the master construction agreement (the AGC agreement) negotiated between the Union and the San Diego Chapter of the Associated General Contractors of Amer- ica. It also adopted any successor AGC agreement, including the one in effect at the time the Union demanded the informa- tion in issue here.4 Clause 31 B of the 2004–2007 master agreement covers owner-operators. By its terms, it applies only to “owner- operators performing jobsite work. . . .” Subparagraph 1 allows the employer to obtain trucks from any source, but requires the drivers to be cleared for work by the Union before starting work on their second day. It also sets forth some proof of own- ership requirements. In subparagraph 2, the contractor, inter alia, commits that it will reserve to itself the right to control the owner-operator through the manner, time, means and details by which the owner-operator performs his job, as well as the ends to be ac- complished and further commits that it will be the sole judge of the capability of the owner-operator to perform the required work. This, in my opinion, is the contractor’s commitment to making jobsite owner-operators employees as defined by Sec- tion 2(3) of the Act, an adoption of the well-known “right of control” test. Subparagraph 3 is consistent. It requires the contractor to carry these owner-operators on its payroll as em- ployees and to apply all the working conditions established by the remainder of the master agreement to the owner-operator, except for any conditions which are contractually excluded. Subparagraph 11 provides for a three-man committee (se- lected in accordance with the steward’s clause) to look into alleged violations of the owner-operators clause. It also pro- vides, for each violation, 1 days pay at the highest hourly rate covering wage and fringe benefit costs to be paid to the San Diego chapter of the Leukemia Society and that the check must be submitted through the Union. In addition, the master agreement contains a relatively stan- dard construction industry union-security clause requiring em- ployees working under it for 7 days, on the 8th day to tender 4 Respondent, in its brief, for the first time asserts that the project agreement specifically references a “master construction agreement,” but observes that the AGC agreements are titled “master labor agree- ment.” It argues that the contractual arrangement being relied upon here is therefore defective and the complaint must be dismissed, since there has been no showing that the AGC agreement is the master which the project agreement incorporates. Frankly, this argument is frivolous and cannot be taken seriously. If Respondent had wanted to make that argument, it should have done so during the investigation, the pleadings stage or during the hearing so the matter could be examined. But the fact is, on this record, there is no other master agreement. Moreover, Respondent has been applying it to both projects. No one is confused about which agreement is in effect. At this point, Respondent is es- topped from such a defense. the regular initiation fee and periodic dues to the Union as a condition of employment. John Terry serves as the Union’s construction industry busi- ness agent. His superior is secretary-treasurer Art Cantu. Dur- ing 2005, Terry made visits to the two projects and realized that there were water tankers spraying the sites, both for dust abatement and to assist in the earth compaction process. He learned from some of them that they were owner-operators who were not being paid wages and fringes under the contract. He obtained the names of some of the drivers and reported the issue to Cantu. To Terry it seemed likely that Respondent was not honoring clause 31 of the master agreement. He and Cantu realized, however, that they had insufficient information to decide what to do. On September 22, 2005, Cantu wrote a letter to Respon- dent’s job superintendent Jim Mende5 essentially notifying him that the Union was putting Respondent on notice that it may be in violation of the owner-operator clause of the master agree- ment. Later, Cantu decided to file a grievance and did so by letter dated January 12, 2006 addressed to “Jim Mindy.” Cantu as- serted that the Company was violating the owner-operator clause and asked for a committee meeting under subparagraph 11. Simultaneously, Cantu sent a separate letter requesting in- formation about the manner in which Respondent was utilizing owner-operator water truckdrivers in order to “knowledgeably process” the complaint. The letter made six information de- mands: (1) Names, address and telephone numbers of each owner-operator; (2) the broker through which the owner- operator was provided; (3) the work the owner-operator was assigned; (4) the days the owner-operator was so engaged; (5) whether the work required the owner-operator to leave the job- site; and (6) copies of the broker’s documentation governing the owner-operator’s engagement. Cantu concluded by observ- ing that the information was also necessary in order to deter- mine the penalties which might be due under the penalty clause. Getting no response, Cantu repeated his request in a letter to “Mindy” dated February 7, 2006, advising that the information sought could be presented in any way that was convenient for Respondent. In addition, Cantu clarified the demand to clearly state that the Union only sought information regarding whether the owner-operators were daily required to leave the jobsite, and said the Union would be happy with the information in “either a positive or negative basis.” Respondent did not reply to the demands of January 12 or February 7, 2006. On April 6, 2006, a meeting was held at the Union’s office during which no information was provided. Respondent prof- fered some evidence relating to the manner in which the nego- tiated trust fund contributions were to be paid, but I rejected the proffer on the grounds that it had nothing to do with providing the underlying information. A second meeting was held on April 26, 2006, but again no information was provided. Fi- nally, on January 18, 2007, during another meeting, Respon- 5 The correct spelling of Mende’s name is unclear. The September 22 letter spells it as shown. Later letters spell it as “Mindy.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1108 dent provided some disorganized and token information regard- ing some hours from Pacific Water Truck and Equipment, a Northern California broker who had sent some owner-operators to the jobsite. (See GC Exh. 9.) This was provided 5 weeks before this hearing and about 2 months after the Regional Di- rector issued this complaint. The General Counsel and the Union regard the material (incomplete, as it was) as too little, too late. Respondent declined to offer any different version of the facts. IV. ANALYSIS The general rule is that an employer is obligated to provide the employees’ statutory bargaining representative with infor- mation in its possession relevant to collective bargaining. De- troit Edison Co. v. NLRB, 440 U.S. 301 (1979); NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); Curtiss-Wright Corp. v. NLRB, 347 F.2d 61 (3d Cir. 1965); Fafnir Bearing Co., 146 NLRB 1582 (1964), enfd. 362 F.2d 716 (2d Cir. 1968). Furthermore, The Board in Sheraton Hartford Hotel, 289 NLRB 463, 463–464 (1988), said 8(a)(5) obligates an employer to provide a union with the re- quested information if there is a probability that the information would be relevant to the union in fulfilling its statutory duties as bargaining representative. When the requested information concerns wage rates, job descriptions, and other information pertaining to employees within the bargaining unit, the infor- mation is presumptively relevant. Postal Service, 332 NLRB 635 (2000) (same). Moreover, information that is “potentially relevant and will be of use to the union in fulfilling its responsibilities as the employees’ exclusive bargaining representative” must be pro- duced. Acme Industrial Co., supra at 435–436; Conrock Co., 263 NLRB 1293, 1294 (1982). The requested information need not be dispositive of the issue for which it is sought but need only have some bearing on it. Information pertaining to em- ployees within the bargaining unit is presumptively relevant. Sheraton Hartford, supra, and Postal Service, supra. Here, the underlying question is whether the individuals about whom the Union is seeking the information are statutory employees within the meaning of Section 2(3) of the statute and therefore in the bargaining unit, or whether they are independ- ent contractors excluded from the definition of employee.6 This is, at bottom, nothing more than a bargaining unit issue: Are the owner-operators in or out of the bargaining unit? That, of course, is the question the Union is trying to answer in its re- quest for information. Respondent’s defense is that the owner- 6 Sec. 2(3) reads in pertinent part: “The term “employee” shall in- clude any employee, and shall not be limited to the employees of a particular employer, unless the Act [this subchapter] explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, . . . .” (Emphasis added.) operators are independent contractors and therefore the Union is seeking information about individuals that it does not and cannot represent. In my opinion, Respondent’s position is pre- mature, for it will not allow for contrary facts to be developed; indeed, it will not allow any facts on the issue to be developed whatsoever. Its stance is designed to keep the Union entirely in the dark. See Conrock, supra at 1294. Of course, Respondent’s view is entirely undermined by the fact that it has agreed in the master agreement to do what it can to make owner-operators statutory employees. It has made a serious contractual commitment to do so. (See par. 31 B (2) of the agreement, supra.) The Union is well aware of that com- mitment and knows it is obligated to represent those individuals as bargaining unit employees. Its desire to both represent them and to apply the union security clause to them is manifest in that circumstance. Indeed, it is obligated under the Act to do its job of representing all employees well, not just some. Now the facts found through the grievance process may ul- timately turn out differently than the Union would contractually expect. It may well be that the owner-operators here are indeed independent contractors and outside the bargaining unit. But facially, the Union has a duty to find out. Respondent also argues that if the owner-operators are independent contractors, then the penalty to be applied, contributing to the Leukemia Society, is a nonmandatory subject matter. Yet I do not regard that as the only remedy available. If these owner-operators are employees who have been wrongly paid as independent con- tractors, there are still wage and hour issues to be looked at, not to mention contributions to the fringe benefit funds and unpaid dues and fees arising from an unlawful unilateral change of working conditions. Those are mandatory subject matters, squarely of interest to the Union as it represents statutory em- ployees. Contrariwise, if Respondent is right, that the owner-operators are, in reality, independent contractors, the Union is entitled to learn that fact. The factual information supporting that conclu- sion must be transparent to the Union as it decides how to en- force (or not enforce) the collective-bargaining agreement. Respondent’s denial of the pertinent information prevents the Union from even knowing how to proceed. The Act favors transparency. Indeed, the employee/owner-operator issues are intimately intertwined and that very fact requires that the matter be treated as a mandatory subject for the purpose of production. See, e.g., Sea Bay Manor Home for Adults, 253 NLRB 739, 740 (1980), enfd. 685 F.2d 425 (2d Cir. 1982) (agreement to use interest arbitration was mandatory subject of bargaining be- cause agreement was so intertwined with other mandatory sub- jects). Respondent has also asserted that the owner-operator clause raises some issues under Section 8(e) of the Act. Potentially, I agree. However, the clause is capable of being interpreted in an lawful manner, and it would be speculation at this stage for me to make the assumptions Respondent is making. When the Union seeks to enforce the clause, after learning that the owner- operators are independent contractors, the time will have come to properly address that question. Until then, Respondent has agreed to take the factual steps necessary to make certain the OTAY RIVER CONSTRUCTORS 1109 owner-operators are statutory employees. It is stuck with that commitment for now. Since it has made no claim that it cannot comply with the Union’s demands, Respondent will be ordered to provide the information requested. 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. Building Material, Construction, Industrial, Professional and Technical Teamsters Union, Local No. 36, International Brotherhood of Teamsters is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material herein the Union has been the exclu- sive representative of the employees working under the juris- diction of the Union as defined in Section 5 of the master col- lective-bargaining agreement between the Associated General Contractors of America, San Diego Chapter, Inc., and the Un- ion, effective by its terms from June 12, 2004, to June 30, 2007. 4. By refusing to provide certain information, set forth in this decision as requested by the Union, Respondent has vio- lated Section 8(a)(5) and (1) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended7 ORDER The Respondent, Otay River Constructors, Chula Vista, Cali- fornia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to provide to Building Material, Construction, Industrial, Professional and Technical Teamsters Union, Local No. 36, International Brotherhood of Teamsters certain infor- mation which is relevant to performing its role as the bargain- ing unit employees’ exclusive collective-bargaining agent. 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. That information is: (1) The names, addresses and telephone numbers of each owner-operator; (2) the broker through which each owner-operator was provided; (3) the work to which the owner-operator was assigned; (4) the days the owner-operator was so engaged; (5) whether the work required the owner- operator to leave the jobsite; and (6) copies of the broker’s documentation governing the owner-operator’s engagement. (b) In any like or related manner restraining or coercing em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) On request, immediately furnish the information set forth above. (b) Within 14 days after service by the Region, post at its of- fice and jobsite offices in and near Chula Vista, California, copies of the attached notice marked “Appendix.”8 Copies of the notice, on forms provided by the Regional Director for Re- gion 21, after being signed by Respondent's authorized repre- sentative, shall be posted by Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, Respondent has gone out of business or closed the facility involved in these proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees employed by the Respondent at any time since January 12, 2006. (c) Within 21 days after service by the Region, file with the Regional Director for Region 21 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply. 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”