Pieper Electric, Inc.

National Labor Relations Board - Board Decisions

Aug 21, 2003

339 N.L.R.B. 1232 (N.L.R.B. 2003)

PIEPER ELECTRIC, INC. 1232
Pieper Electric, Inc., PPC Holdings, Inc. (Single Em-
ployer) and International Brotherhood of Elec-
trical Workers, Local 494, AFL–CIO. Case 30–
CA–15504
August 21, 2003
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA
On November 1, 2002, Administrative Law Judge
Bruce D. Rosenstein issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply 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 affirms the
judge’s rulings, findings,1 and conclusions only to the
extent consistent with this Decision and Order.
The judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by refusing to furnish to the
International Brotherhood of Electrical Workers, Local
494, AFL–CIO (Local 494 or the Union) certain re-
quested information.2 Specifically, the Union asked for
the names of all Local 494 members who were participat-
ing or had been solicited to participate in the Respon-
dent’s Employee Stock Purchase Plan (ESPP). The basis
of the Union’s request was section 12.05 of the parties’
collective-bargaining agreement, which restricts stock
ownership by covered employees. As explained more
fully below, we find that the Respondent had no duty to
furnish the requested information because both section
12.05 and the ESPP concern permissive subjects of bar-
gaining. Accordingly, by our Order, we will reverse the
judge’s 8(a)(5) violation finding and dismiss the com-
plaint.
I. THE FACTS
Pieper Electric, Inc. is an electrical contractor located
in Milwaukee, Wisconsin, and a member of the National

1 We disagree with the judge’s finding, in fn. 6 of his decision, that a
union has an absolute right to police provisions of the parties’ agree-
ment. While a union has the right to police contract provisions, this
does not give it the absolute right to obtain all requested information.
The information must be of use in fulfilling its statutory duties. Thus,
there is no duty to furnish information concerning a nonmandatory
subject of bargaining.
2 As used herein, the term “Respondent” refers to Pieper Electric,
Inc. and PPC Holdings, Inc. as a single employer. Under the terms of a
stipulation that was admitted into evidence, Pieper Electric, Inc. and
PPC Holdings, Inc. deny that they are a single employer, but agree to
be treated as such “for purposes of the information request at issue in
the Complaint and any decision or remedial order issued and enforced
by the Board or court of appeals in this case.”
Electrical Contractors Association of Milwaukee
(NECA), a multiemployer association consisting of ap-
proximately 100 employers. NECA and Local 494 have
been parties to successive collective-bargaining agree-
ments, to which Pieper Electric has been bound since
1977 under a letter of assent. Since the mid-1960s, those
agreements have contained the following provision as
section 12.05:

No employer shall allow an employee to hold
and no employee shall hold stock in any shop or
company employing employees covered by this
agreement. Avoidance of the intent of this sec-
tion shall not be allowed by pretense of owner-
ship of stock or interest in the subject contract-
ing business by an immediate member of the
family.

PPC Holdings, Inc. (PPC) owns Pieper Electric and
two other subsidiaries, and is owned in turn by its share-
holders. PPC’s subsidiaries include some nonunion con-
tractors. Prior to 2000, the majority shareholder of PPC
was Richard Pieper, chairman and CEO of both PPC and
Pieper Electric. In a January 2000 memo to employees,
Richard Pieper announced that PPC would be imple-
menting an employee ownership program. This same
memo also stated that once implemented, the ESPP
would reduce Richard Pieper to a minority shareholder
and give employees majority control. This announce-
ment did not go unnoticed by the Union. In the Union’s
February 2000 newsletter, Local 494 Business Manager
Paul Welnak remarked that “[o]ne of our employers is
proposing to sell stock to his employees,” and added that
in his opinion section 12.05 would have to be changed
before an employee ownership program could be imple-
mented.
The then-current collective-bargaining agreement be-
tween Local 494 and NECA was set to expire May 31,
2000. During negotiations for a successor agreement,
NECA proposed deleting section 12.05. Welnak re-
sponded that he would be willing to discuss NECA’s
proposal if Pieper Electric were not affiliated with non-
union companies. The Union ultimately rejected
NECA’s proposal, and section 12.05 remained a part of
the collective-bargaining agreement effective June 1,
2000, through May 31, 2003.
Welnak addressed the ESPP again in the Union’s Au-
gust 2000 newsletter. According to Welnak, Pieper Elec-
tric was taking the position that the ESPP was not in con-
flict with section 12.05 because employees would buy
stock in PPC, a nonsignatory company, rather than in
Pieper Electric. Welnak rejected this position, stating
that he was not interested in “the spider web of com-
339 NLRB No. 160
PIEPER ELECTRIC, INC. 1233
pan[ies] that Pieper has created.” He also stated that
Local 494 would view participation in the ESPP by Un-
ion members as a violation of both section 12.05 and the
IBEW Constitution, and added that “charges could be
filed.” At a subsequent meeting with Pieper Electric
employees, Welnak said that if they purchased PPC
stock, they could be put on trial by the Union, disci-
plined, and fined.
The salient features of the ESPP are explained in a
PPC-authored document introduced into evidence by the
General Counsel:

• Between $3.5 and $4.5 million worth of PPC
stock was to be sold to employees during the
January 1, 2001 initial offering. The proceeds
of the initial offering were to be used to pur-
chase stock from Richard Pieper, with the
goal of reducing his ownership stake in PPC
below 50%. The initial offering share price
was $20. Dividends will not be paid.
• The price of PPC stock equals its “book
value,” determined annually by outside audi-
tors. For mid-year transactions, the average
change in book value over the three prior
years, prorated for the portion of the year
through the transaction date, is added to the
most recent book value determination. For
example, assume that book value is fixed an-
nually on December 31; that during the three
years ending December 31, 2003, the book
value of PPC stock has increased an average
of $4 per year; and that book value on De-
cember 31, 2003 is $32 a share. Under these
assumptions, when PPC stock changes hands
on March 31, 2004, the share price would be
$33.
• Only current employees of PPC’s three sub-
sidiaries may purchase PPC stock. Employ-
ees must sell their stock back to PPC when
their employment terminates, with two excep-
tions: laid-off employees may keep their
stock up to two years and one day after layoff,
and retirees may retain their shares indefi-
nitely (although shares held by retirees con-
vert at retirement into nonvoting stock). PPC
stock cannot be bequeathed. When a stock-
holder dies, PPC repurchases his shares “so
that the stock [can be made] available to be
sold to current employees.”
• Employees were permitted to buy shares ei-
ther through a lump sum payment on the
date of the initial offer, or through payroll
deductions for up two years after that date.
Employees choosing the latter plan pur-
chased stock quarterly with their accrued
payroll deductions for that quarter. As
stated above, stock purchased on the initial
offering date cost $20 a share. However,
the cost of stock purchased through payroll
deduction depended on the share price on
the several quarterly transaction dates. In
other words, while payroll-deduction par-
ticipants were permitted to spread the cost
of their stock purchases over two years,
they risked paying a higher per share price
than was paid by lump-sum buyers if the
book value of PPC stock increased after the
initial offering date. Payroll deductions for
stock purchases were made from after-tax
income.

The ESPP went into effect on January 1, 2001. By let-
ter dated January 5, 2001, Welnak requested from Pieper
Electric a list of all Local 494 members who were par-
ticipating in the ESPP. Pieper Electric responded that it
possessed no records relating to the requested informa-
tion because the ESPP had been established by PPC, “a
totally separate and distinct entity.” By letter dated
March 12, 2001, addressed to Richard Pieper as chair-
man and CEO of both Pieper Electric and PPC, Welnak
asked for a list of all union members who were partici-
pating or had been solicited to participate in the ESPP.
Richard Pieper responded in two separate but identically
worded letters on behalf of Pieper Electric and PPC, re-
spectively, reiterating that PPC, not Pieper Electric, had
established the ESPP, and observing that PPC has no
collective-bargaining relationship with Local 494. Addi-
tionally, Pieper stated that he was aware of “threatening
statements” Welnak had made concerning ESPP partici-
pation by members of Local 494, and added that “even if
Pieper Electric possessed [the requested] information,
and even if PPC Holdings were an employer obligated to
provide such information, we would question the rele-
vancy of the requested information and the legality of the
request itself.”
II. THE POSITIONS OF THE PARTIES
The Respondent denies that its refusal to furnish the
requested information violated Section 8(a)(5). Its prin-
cipal argument is that the names of ESPP participants
were irrelevant to the Union’s duties as collective-
bargaining representative because the Union’s purpose in
requesting those names was to impose internal union
discipline on ESPP participants. Additionally, the Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1234
spondent argues that the Union was not entitled to the
requested names because section 12.05 concerns a per-
missive subject of bargaining. In support of this conten-
tion, the Respondent points out that section 12.05 prohib-
its nonemployees—i.e., employees’ immediate family
members—from buying stock. In the Respondent’s
view, this aspect of section 12.05 relegates it to permis-
sive bargaining status under Allied Chemical & Alkali
Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S.
157 (1971) (Chemical Workers). Alternatively, the Re-
spondent takes the position that section 12.05 concerns
an illegal subject of bargaining.
In his post-hearing brief to the judge, the General
Counsel contended that because the requested informa-
tion relates to a provision of an existing collective-
bargaining agreement, it is demonstrably necessary to the
Union in performing its statutory duty to enforce that
agreement. Challenging the Respondent’s permissive
subject argument, the General Counsel cites two cases—
Richfield Oil Corp., 110 NLRB 356 (1954), and Food-
way, 234 NLRB 72 (1978)—in which the Board found
employee stock purchase plans to be mandatory subjects
of bargaining. The General Counsel denies that section
12.05 is an illegal subject of bargaining.
III. ANALYSIS AND DISCUSSION
As stated above, the Respondent’s principal argument
is that the Union’s aim of disciplining ESPP participants
rendered their names irrelevant to the Union’s statutory
duties. In so arguing, the Respondent relies chiefly on
Nordstrom, Inc., 229 NLRB 601 (1977).3 In Nordstrom,
the employer refused the union’s request for the names
of employees who had crossed a picket line. Id. at 610.
The Board dismissed the resulting 8(a)(5) allegation,
finding that the employer had no duty to furnish those
names because the union wanted them “not so it could
deal more effectively with Nordstrom as concerns man-
datory subjects of bargaining, but purely to simplify the
identification and disciplining of those who breached its
picket lines. . . . [U]nion discipline is not an area of man-
datory bargaining.” Id. at 611.
The Respondent evidently reads Nordstrom as broadly
holding that employers may lawfully refuse an informa-

3 The Respondent also cites Page Litho, Inc., 311 NLRB 881 (1993),
for the rule that an employer may lawfully withhold the names of em-
ployees where there is “a clear and present danger that the information
would be misused by the union.” Id. at 882. However, Page Litho
involved a request for the names of replacement workers, and the con-
cern was that the union would harass the replacements. Page Litho did
not concern union discipline, and thus does not support the Respon-
dent’s contention that such discipline constitutes union misuse. Chi-
cago Tribune Co. v. NLRB, 965 F.2d 244 (7th Cir. 1992), also cited by
the Respondent, similarly involved a request for the names of striker
replacements.
tion request whenever the union seeks information for
union disciplinary purposes. However, Nordstrom can-
not so hold without contradicting Blue Cross & Blue
Shield of New Jersey, 288 NLRB 434 (1988), cited by
the General Counsel. In Blue Cross, the employer began
letting employees take work home. The union viewed
home overtime work as violating the parties’ collective-
bargaining agreement. A union official asked the em-
ployer for the names of employees doing such work, stat-
ing that he intended to recommend fines and suspensions
for those employees. Id. at 435. Despite this stated pur-
pose, the Board found that the union was entitled to the
requested names. Id. at 436–437.
Nordstrom and Blue Cross are not inconsistent. In
Nordstrom, the union requested names, not to police a
collective-bargaining agreement, but simply to facilitate
union discipline of members who had crossed a picket
line. Thus, there was no duty to furnish those names
because “union discipline is not an area of mandatory
bargaining.” 229 NLRB at 611. In Blue Cross, the un-
ion asked for names to police a collective-bargaining
agreement with respect to overtime work, clearly a man-
datory subject of bargaining. Thus, there was a duty to
furnish the requested information notwithstanding the
union’s disciplinary intentions. In the instant case, as in
Blue Cross, the Union requested information for the pur-
pose of policing a contract provision—specifically, sec-
tion 12.05—by means of union discipline. Thus, if sec-
tion 12.05 concerns a mandatory subject of bargaining,
we would agree with the General Counsel that the Re-
spondent has a duty to furnish that information. As ex-
plained below, however, we find that section 12.05 con-
cerns a permissive subject of bargaining, as does the
ESPP itself.4
We begin by reviewing some relevant principles. A
union is entitled to requested information “if there is a
probability that such data is relevant and will be of use to
4 In finding that sec. 12.05 concerns a permissive subject of bargain-
ing, we reject the Respondent’s alternative contention that sec. 12.05
violates Sec. 8(a)(3) of the Act and therefore constitutes an illegal
subject of bargaining. It is true that an employer violates the Act by
maintaining an employee stock purchase plan that excludes union
members. Computer Sciences Corp., 258 NLRB 641, 648 (1981).
However, sec. 12.05 does not compel signatory employers to violate
the Act because employers are under no legal obligation to maintain
employee stock purchase plans. Signatory employers may comply with
sec. 12.05 without discriminating based on union membership simply
by not selling stock to their employees in the first place.
Agreeing with the Respondent that sec. 12.05 concerns a permissive
subject of bargaining, we need not pass on the Respondent’s additional
arguments that (1) the Union breached its duty of fair representation by
seeking to enforce sec. 12.05; (2) sec. 12.05 is an undue restraint on
alienation, unenforceable under Wisconsin law; (3) enforcing sec.
12.05 would constitute tortious interference with contract; and (4) sec.
12.05 is contrary to sound public policy.
PIEPER ELECTRIC, INC. 1235
the union in fulfilling its statutory duties as the employ-
ees’ exclusive bargaining representative.” Southern Ne-
vada Builders Assn., 274 NLRB 350, 351 (1985). This
liberal discovery-type standard nevertheless contains an
important limitation: the data must be of use in fulfilling
statutory duties. The “duty to furnish . . . information
stems from the underlying statutory duty imposed on
employers and unions to bargain in good faith with re-
spect to mandatory subjects of bargaining.” Cowles
Communications, Inc., 172 NLRB 1909 (1968). Thus,
there is no duty to furnish information concerning a
nonmandatory subject of bargaining. Service Employees
Local 535 (North Bay Center), 287 NLRB 1223 fn. 1
(1988).5 Furthermore, “[p]arties do not have the power
to alter this result merely by reaching agreement on the
terms of a nonmandatory subject.” Id. at 1225; see
Chemical Workers, supra, 404 U.S. at 187 (“By once
bargaining and agreeing on a permissive subject, the par-
ties, naturally, do not make the subject a mandatory topic
of future bargaining.”). That there is no duty to furnish
information relevant to a contract provision concerning a
permissive subject is consistent with the rule laid down
in Chemical Workers that unilateral modification or ter-
mination of a contract provision violates Section 8(a)(5)
only if that provision concerns a mandatory subject. Id.
at 185–188. The greater principle includes the lesser:
since it is not an 8(a)(5) violation to terminate a contract
provision concerning a permissive subject, neither can it
be an 8(a)(5) violation to refuse to furnish information
relevant to policing such a provision.
In Chemical Workers, the Supreme Court held that an
employer has no duty to bargain concerning benefits for
retirees because retirees are not “employees.” Id. at 165.
Relying on this holding, the Respondent contends that
section 12.05 concerns a permissive subject because it
affects nonemployees—i.e., employees’ immediate fam-
ily members—by restricting their right to own stock.
The General Counsel responds that the wording of sec-
tion 12.05 makes it clear that restrictions on stock owner-
ship by family members apply only where the employee
is trying to circumvent the intent of that provision, and
thus section 12.05 remains directed at employees them-
selves. We need not resolve this dispute, however, be-
cause we rely on a different rationale in finding that sec-
tion 12.05 concerns a permissive bargaining subject.
Mandatory subjects are limited to those that settle an
aspect of the relationship between an employer and its
employees, or that involve individuals outside the em-
ployment relationship but vitally affect the terms and

5 Petition for review denied 905 F.2d 476 (D.C. Cir. 1990), cert. de-
nied 498 U.S. 1082 (1991).
conditions of employment of those within that relation-
ship. Chemical Workers, supra at 178–179. By its
terms, section 12.05 prohibits employees from holding
stock, not only in their own employers, but also in any of
the roughly 100 companies that are signatory to the
collective-bargaining agreement between the Union and
NECA. Even assuming that employee ownership of
stock in the employee’s own employer is a mandatory
subject of bargaining, a prohibition on employee owner-
ship of stock in other companies neither settles nor vi-
tally affects any aspect of the relationship between signa-
tory employers and their own employees, and thus is not
a mandatory subject. However, because the information
request in this case pertains to the Union’s effort to en-
force section 12.05 with respect to ESPP participants,
who do own stock in their own employer, we will also
consider whether the ESPP itself concerns a mandatory
or permissive subject of bargaining.
Citing Richfield Oil Corp., 110 NLRB 356 (1954),6 the
judge found a “strong presumption” that the ESPP is a
mandatory subject of bargaining. In addition, the Gen-
eral Counsel cites Foodway, 234 NLRB 72 (1978), as
supporting a like finding. We find Richfield Oil and
Foodway distinguishable.
In Richfield Oil, employee members of the stock pur-
chase plan contributed up to 5 percent of monthly pay
into individual “member” accounts, and the employer
made matching contributions of up to 75 percent into a
separate “trusteed” account for each plan member. The
trustee of the Richfield plan used the funds in both the
member and trusteed accounts to purchase Richfield
common stock. No stock was distributed to employees
while they remained with the company. Upon separation
from service at or after age 55 (for men) or 50 (for
women), plan members received 100 percent of the stock
in both of their accounts. If employment ended before
that age, the employee received 100 percent of the stock
in his member account and a percentage of the stock in
his trusteed account, depending upon length of time in
the plan—from zero percent if fewer than 5 years, up to
100 percent if 10 years or more. 110 NLRB at 358–359.
The Board found the Richfield plan to be a mandatory
subject of bargaining for two reasons. First, it consti-
tuted “wages” because the employer made matching con-
tributions, an “emolument of value.” Id. at 359. Second,
because employees did not receive stock until their em-
ployment ended, the Richfield plan also came within the
scope of “other conditions of employment” because em-
ployees “perform[ed] their work under a pledge . . . of
6 Enfd. 231 F.2d 717 (D.C. Cir. 1956), cert. denied 351 U.S. 909
(1956).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1236
future payments in the form of company stock.” Id. at
360–361. Observing that the Richfield plan emphasized
“long term accumulation of stock for future needs rather
than . . . stock ownership as such,” and that benefits un-
der the plan “are related to the employees’ length of ser-
vice and amount of wages while participating,” id. at
360, the Board found no real difference between the
Richfield stock purchase plan and a retirement and pen-
sion plan, id. at 360 fn. 7.
In Foodway, employees were offered options to pur-
chase shares of company stock “on a payroll deduction
credit basis” at $33.95 a share, which was 11.1 percent
below fair market value. 234 NLRB at 73. Thus, the
Board found the Foodway plan to be a mandatory subject
of bargaining because it gave employees the opportunity
to buy company stock “on a partial extension of credit
and at a discount from fair market value with the conse-
quential opportunity for capital gain realization.” Id. at
76.
The ESPP differs from both these plans. First, it does
not constitute “wages” because employees receive no
“emolument of value.” Unlike in Richfield Oil, the Re-
spondent makes no matching contributions. Unlike in
Foodway, shares are sold at fair market value—i.e., at
book value as determined by outside auditors. The Re-
spondent’s employees were permitted to buy stock
through payroll deduction, but this did not involve any
extension of credit. As explained above, the Respon-
dent’s payroll deduction plan simply allowed employees
to set aside a portion of after-tax income for stock pur-
chases at the share prices on the several quarterly trans-
action dates, not on the earlier initial offering or payroll
deduction dates. Thus, payroll deduction participants
incurred the risk of paying a higher per share price than
participants who purchased all their shares on the initial
offering date.
Second, the ESPP does not come within the scope of
“other conditions of employment” because it does not
operate as a retirement plan. Unlike in Richfield Oil, the
Respondent’s employees do not “perform their work
under a pledge . . . of future payments in the form of
company stock,” id. at 360–361, the amount of stock an
employee acquires is not tied to length of service, and the
ESPP does not emphasize “long term accumulation of
stock for future needs rather than . . . stock ownership as
such,” id. at 360. On the contrary, the whole point of the
ESPP is precisely stock ownership as such because its
purpose is to vest majority ownership of PPC in its sub-
sidiaries’ employees. Consistent with this purpose, PPC
shares may not be bequeathed, and employees must sell
their stock back to the company if they quit, are dis-
charged for cause, or are laid off longer than a stated
length of time.
Accordingly, we find that the ESPP does not come
within the scope of those subjects of bargaining made
mandatory by Section 8(d) of the Act: wages, hours, or
other terms and conditions of employment. For that rea-
son, and because section 12.05 itself also concerns a
permissive subject of bargaining, we conclude that the
Respondent did not violate Section 8(a)(5) by refusing to
furnish the Union the names of ESPP participants.
Our conclusion is bolstered by Harrah’s Lake Tahoe
Resort, 307 NLRB 182 (1992). In that case, the Board
found unprotected an employee’s advocacy of a proposed
leveraged buyout, through an employee stock ownership
plan (ESOP) trust, of 50 percent of the stock of the em-
ployer’s parent corporation. In so finding, the Board
emphasized that “any 50-percent shareholder, including
an ESOP trust, would as a practical matter exercise effec-
tive control over every detail of corporate policy,” and
that “the thrust of the proposal was to cast employees in
the role of owners with ultimate corporate control, and
thus fundamentally to change how and by whom the cor-
poration would be managed.” Id. Accordingly, the
Board found the employee’s activities to be outside the
scope of Section 7 protection because the ESOP proposal
he advocated “[did] not advance employees’ interests as
employees but rather advance[d] employees’ interests as
entrepreneurs, owners, and managers.” Id. Based on this
finding, the ESOP proposal itself would have constituted
a nonmandatory bargaining subject had that issue been
raised. See G & W Electric Specialty Co., 154 NLRB
1136, 1137–1138 (1965) (holding that Section 7 sweeps
more broadly than Section 8(d) inasmuch as it protects
conduct undertaken not only “for the purpose of collec-
tive bargaining,” but also for “other mutual aid or protec-
tion”).7 Thus, Harrah’s supports our finding that the
ESPP, which similarly sought to give employees a con-
trolling interest in their employer’s parent corporation,
does not concern a mandatory subject of bargaining.
According to our dissenting colleague, the ESPP pro-
vides the Respondent’s employees with “substantial
benefits.” We disagree. One such purported benefit is
that employees do not pay fees “that normally accom-
pany the purchase and sale of stock.” This is comparing
two different kinds of transactions: transactions in shares
of publicly traded companies versus transactions in
shares of closely held corporations such as the Respon-
dent. Fees normally accompany the former because

7 Enf. denied in part 360 F.2d 873 (7th Cir. 1966). While the court
of appeals disagreed with the Board’s finding that the particular con-
duct at issue in G & W Electric was protected, it did not dispute the
principle for which G & W Electric is cited here.
PIEPER ELECTRIC, INC. 1237
those transactions take place on a stock exchange and
require the services of a broker. Fees do not accompany
the latter, however, because those transactions are not
brokered. There is no benefit whatsoever, let alone a
substantial benefit, in not having to pay for services not
rendered.
The other purported benefit our colleague relies on is
that employees are guaranteed a continuously available
book-value buyer for their shares, an arrangement he
characterizes as “opportune and convenient.” It is nei-
ther. First, the fact that the Respondent stands ready to
repurchase employee-owned shares is not a convenience,
but a legal necessity. As our colleague notes, employees
may sell their shares only to the Respondent. If the Re-
spondent did not furnish a market, its stock could not be
sold at all. Such an absolute restriction on the transfer of
shares would be void as against public policy. See 18
Corpus Juris Secundum § 220. Second, the fact that em-
ployees’ shares are repurchased at book value may well
be the opposite of “opportune.” Suppose that the book
value of the Respondent’s stock has held steady for sev-
eral years at $20 a share. The following year, the Re-
spondent’s business grows dramatically. That same year,
but before the annual share revaluation, an employee
quits, forcing a sale of his shares to the company at $20 a
share. Shortly thereafter, the auditor does his work, and
book value rises to $30 a share. Had the Respondent’s
stock been publicly traded, the market would have con-
tinuously readjusted its value, and the share price at the
time of the sale would have reflected the Respondent’s
recent growth. Under the book value system, however,
the employee loses out on that growth. Admittedly, the
converse scenario could also occur, in which case the
book-value system would insulate the forced sale from a
sudden decline in the Respondent’s business. The point,
however, is that the book-value system is a double-edged
sword, and there is no guarantee that it will cut in em-
ployees’ favor.
Assuming arguendo that employees benefit from the
ESPP, our colleague’s argument still fails to persuade.
Our colleague believes that because the ESPP benefits
employees, it is “self-evidently and incontrovertibly” an
employee benefit. However, his view does not square
with Harrah’s Lake Tahoe Resort, supra. As we have
explained, in that case the Board found an ESOP that
would have made employees 50-percent shareholders
advanced employees’ interests not as employees, but
rather as entrepreneurs, owners, and managers. Since the
ESPP similarly purposes to vest majority ownership of
the Respondent in its employees, the same finding ap-
plies here. It follows, therefore, that even if the ESPP
benefits employees, it is not an “employee benefit.”8
ORDER
The complaint is dismissed.

MEMBER WALSH, dissenting.
The Respondent’s Employee Stock Purchase Plan (the
ESPP or Plan), which provides its employees with sub-
stantial advantages related to their purchase of the Re-
spondent’s stock, is clearly a mandatory subject of bar-
gaining. Therefore, contrary to my colleagues, I would
find that the Respondent unlawfully refused to provide
the Union with the information it requested about em-
ployee participation in the Plan, in the course of the Un-
ion’s attempt to enforce section 12.05 of the parties’ col-
lective-bargaining agreement.
Facts
Section 12.05, set out in full by the judge and by my
colleagues, expressly prohibits the Respondent from al-
lowing its employees to hold stock in the Respondent,
and expressly prohibits employees from holding such
stock. By clear implication, therefore, it also prohibits
the Respondent from selling its stock to its employees.
These prohibitions have been in the parties’ collective-
bargaining agreements since 1977. During negotiations
for the most recent collective-bargaining agreement
(June 1, 2000—May 31, 2003), the Respondent tried to
get the Union to agree not to retain this provision. The
Union did not agree, and section 12.05 was retained.
Notwithstanding these contractual prohibitions, the
Respondent unilaterally implemented the Employee
Stock Purchase Plan in January 2001, encouraging em-
ployees to purchase and hold stock in the Respondent.

8 Our colleague’s attempt to distinguish Harrah’s Lake Tahoe Re-
sort, 307 NLRB 182 (1992), is unpersuasive. Member Walsh correctly
states that in Harrah’s, the ESOP proposal would have effected a fun-
damental change in corporate control through a leveraged buyout. He
also states that “the Respondent made it clear to the employees that
even if they collectively purchased more than 50 percent of the Re-
spondent’s stock, the Respondent would continue to operate as it had
been operating, with the same operating structure.” From this, he con-
cludes that unlike the ESOP in Harrah’s, the ESPP’s intended transfer
of majority ownership from Dick Pieper to the Respondent’s employees
would be effected “without relinquishing control over the operation of
the company to the employees.” But this is impossible. If employees
hold majority ownership, they necessarily wield corporate control.
That the Respondent will continue to have the same “operating struc-
ture” simply follows from the fact that the Respondent will continue to
be a corporation after its employees acquire majority control. By stat-
ute, the corporate form entails a certain structure—i.e., oversight by an
elected board of directors. The crucial point, however, is that the em-
ployees will do the electing. Indeed, the Respondent made this clear to
the employees, stating that Dick Pieper plans to remain as chairman of
the board for at least 5 more years “if the stockholders choose to retain
him as chairman.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1238
Shortly after the Plan went into effect, and in an effort to
enforce the prohibitions in section 12.05, the Union
asked the Respondent to provide it with the names of all
union members who were participating in the Plan. The
Respondent refused to provide the requested information.
In March 2001, the Union again requested that informa-
tion, and also requested the names of each union member
who had been solicited to participate in the Plan. The
Respondent again refused to provide the requested in-
formation.
Analysis and Conclusions
1. Mandatory subject of bargaining
My colleagues have accurately described and summa-
rized the Plan. Only employees of the Respondent are
eligible to buy the Respondent’s stock from the Respon-
dent under the Plan, and they are permitted to sell it only
to the Respondent. The employees purchase the stock
directly from the Respondent. If they prefer, the Re-
spondent directly withholds the purchase money from
their paychecks. The employees incur no brokerage or
transaction fees. The Respondent also provides a con-
tinuously available market for its employees to sell their
shares back to the Respondent. The Respondent is obli-
gated to buy all the shares that the employees want to
sell, at independently audited book value, and again
without the employees incurring brokerage or transaction
fees.
These substantial rights and benefits conferred on em-
ployees by the Respondent under the Plan are expressly
and entirely premised on their status as the Respondent’s
employees. My colleagues cannot contend that the Plan
does not provide the employees with substantial benefits.
It provides the employees with a convenient system for
purchasing the Respondent’s stock, and selling it back to
the Respondent on a continuous basis. It allows them to
avoid the brokerage and transaction fees that normally
accompany the purchase and sale of stock of publicly
traded companies. My colleagues say that I am compar-
ing two different kinds of transactions. Precisely. One
kind of transaction, the purchase or sale of stock in pub-
licly traded companies, generally involves the services of
a broker and thus the payment of brokerage fees. An-
other, different kind of transaction, the purchase or sale
of stock in closely held companies, such as the purchase
or sale of the Respondent’s stock under the ESPP, does
not involve the services of a broker and thus does not
require the payment of brokerage fees. The ability of the
Respondent’s employees under the ESPP to buy and sell
stock in the Respondent without requiring the services of
a broker, and thus without incurring brokerage fees, is
clearly a benefit for them when compared to their inabil-
ity to buy and sell stock in publicly traded companies
without requiring the services of a broker and the pay-
ment of brokerage fees. And this benefit to the Respon-
dent’s employees under the ESPP is exclusively avail-
able to them solely on the ground that they are the Re-
spondent’s employees. This ESPP benefit is, therefore, a
term and condition of their employment, and thus a man-
datory subject of bargaining.
The fact that the Respondent has legally obligated it-
self to repurchase its stock from its employees does not
make that option any less opportune and convenient to
the employees. Rather, it guarantees a book value buyer
for those shares. My colleagues, however, say that this is
neither opportune nor convenient. First, it is hard to
imagine a more convenient way to sell stock than to a
guaranteed purchaser on demand without incurring bro-
kerage fees. But my colleagues also say that the sale-
back option under the ESPP is not opportune because the
employees might wind up selling the stock for less than
its soon-to-be recomputed value. But, as my colleagues
concede, the employees also might wind up selling the
stock for more than its soon-to-be recomputed value. In
any event, the employees still have the ability under the
ESPP to choose the most opportune time for them to sell
their stock back to the Respondent, given their personal
situations and the vagaries of stock valuation.
The Plan is, therefore, self-evidently and incontro-
vertibly an employee benefit and a term and condition of
employment. As such, it is a mandatory subject of bar-
gaining.1 And, contrary to my colleagues’ view, the Plan
is no less a mandatory subject of bargaining simply be-
cause there are differences between it and the plans that
were also found to be mandatory subjects of bargaining
in Richfield Oil Corp. and Foodway, supra. Indeed, the
plans in those cases were different from each other as
well, and yet they were both found to be mandatory sub-
jects of bargaining notwithstanding their differences. My
colleagues do not contend, nor can they, that the particu-
lars of the plans in those cases delineate the boundaries
of the universe of employee stock purchase plans that are
mandatory subjects of bargaining.2

1 See Foodway, 234 NLRB 72 (1978); Richfield Oil Corp., 110
NLRB 356 (1954), enfd. 231 F.2d 717 (D.C. Cir. 1956), cert. denied
351 U.S. 909 (1956).
2 My colleagues also rely on Harrah’s Lake Tahoe Resort, supra, as
support for their conclusion that the Plan is not a mandatory subject of
bargaining. Their reliance on that case is, however, misplaced. Unlike
the instant case, the dispositive issue in Harrah’s was whether em-
ployee Larry George was engaged in activity protected by Sec. 7 of the
Act when he solicited employee support for his proposal that an em-
ployee stock option plan purchase 50 percent of the employer’s parent
corporation, by means of a leveraged buyout in which the plan would
borrow $335 million to buy 50 percent of the parent’s outstanding stock
and also assume $450 million of the parent’s corporate debt. The
PIEPER ELECTRIC, INC. 1239
2. Refusal to provide requested information
My colleagues have set out the well-settled principles
governing the question of when an employer is obligated
to provide a union with requested information. An em-
ployer must provide a union with requested information
if there is a probability that the information is relevant
and will be of use to the union in fulfilling its role as the
collective-bargaining representative of the employees.
NLRB v. Acme Industrial Co., 385 U.S. 423 (1967).
Section 12.05 of the parties’ collective-bargaining
agreement prohibits the Respondent from selling its
stock to its employees, and prohibits its employees from
holding it. But the entire raison d’être of the Respon-
dent’s Plan is to sell the Respondent’s stock to its em-
ployees and for them to hold it or sell it directly back to
the Respondent. Thus, in Union Business Manager Wel-
nak’s January 5, 2001 letter to the Respondent, he re-
quested information about conduct by the Respondent
and the employees that was apparently in direct violation
of section 12.05. The letter, from Welnak to the Re-
spondent, stated:

As you are aware, Local 494 has long taken the posi-
tion that it would be a contract violation for Pieper to
sell to, or for [Local] 494 members to own stock in
your company.

In order for me to fulfill my obligations to all of our
members, in my capacity as Business Manager of Lo-
cal 494, I am requesting that you provide me with a list
of any and all [Local] 494 members who are participat-
ing in this program.

Board majority found that George’s conduct was not protected by Sec.
7’s mutual aid or protection clause because the thrust of his proposal
was to fundamentally change how and by whom the parent corporation
would be managed, by placing the employees themselves in ultimate
control of the corporation.
The instant case does not present the issue or the facts presented in
Harrah’s. Here, the Respondent made it clear to the employees that
even if they collectively purchased more than 50 percent of the Re-
spondent’s stock, the Respondent would continue to operate as it had
been operating, with the same operating structure. George’s attempt in
Harrah’s to use the existing employee stock option plan as a vehicle to
effect an employee leveraged buyout of the employer’s parent com-
pany, in order to fundamentally change how and by whom the parent
corporation would be controlled and operated, is thus fundamentally
different in kind from the Respondent’s creation of the Employee Stock
Purchase Plan to liquidate Owner Dick Pieper’s interest in the Respon-
dent without relinquishing control over the operation of the company to
the employees.
In sum, the Board majority in Harrah’s found that George’s scheme
had no more than an attenuated relationship to, and did not advance, his
fellow employees’ interests as employees. Here, by clear contrast, the
Respondent’s Employee Stock Purchase Plan was conceived and de-
signed specifically for the direct, immediate benefit of the Respondent’s
employees—as, and only as, employees.

In his March 12, 2001 letter to the Respondent, Welnak
again requested essentially the same information as he asked
for in his January letter, for the same expressed reason:

As you are aware, Local 494 believes it would be a
contract violation for Pieper to offer Local 494 mem-
bers such stock ownership.

In order for Local 494 to carry out its responsibilities
and to administer the collective bargaining unit [sic]
. . . I am requesting that you provide me a list of each
[Local] 494 member who has been solicited to partici-
pate in the program and any response from [Local] 494
members and a list of those [Local] 494 members par-
ticipating in the program.

Applying the above principles to the circumstances
here, and in light of the fact that the Plan is a mandatory
subject of bargaining, it is clear that the Respondent has
violated Section 8(a)(5) and (1) of the Act as alleged by
refusing to provide the Union with the information it
requested about the employees’ participation in the Plan,
in the course of the Union’s attempt to enforce section
12.05 of its collective-bargaining agreement with the
Respondent.3

Paul Bosanac, Esq., for the General Counsel.
Jonathan O. Levine, Esq., of Milwaukee, Wisconsin, for the
Respondent-Employer.
Mathew R. Robbins, Esq., of Milwaukee, Wisconsin, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on August 5, 2002, in Milwaukee, Wiscon-
sin, pursuant to a complaint and notice of hearing (the com-
plaint) issued by the Regional Director for Region 30 of the
National Labor Relations Board (the Board) on July 30, 2001.1
The complaint, based upon an original charge in Case 30–CA–
15504 filed by International Brotherhood of Electrical Workers,
Local 494, AFL–CIO (the Charging Party or Union), alleges
that Pieper Electric, Inc., PPC Holdings, Inc. (single employer)
(the Respondent or Employer), has engaged in certain viola-
tions of Section 8(a)(1) and (5) of the National Labor Relations
3 See Blue Cross & Blue Shield of New Jersey, 288 NLRB 434
(1988), in which the Board found that although the union contractually
waived the right to bargain over implementation of home overtime, it
did not waive the right to verify the circumstances of the implementa-
tion, or monitor the conduct, of the home overtime program. The
Board found that the names of employees doing home overtime work
were presumptively relevant to the union’s function in administering
and policing the collective-bargaining agreement, even if the sole rea-
son the union wanted the employees’ names was to take internal disci-
plinary action against them.
1 All dates are 2001 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1240
Act (the Act). The Respondent filed a timely answer to the
complaint denying that it had committed any violations of the
Act.
Issues
The complaint alleges that the Respondent refused to provide
necessary and relevant information to the Union in violation of
Section 8(a)(1) and (5) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation engaged in the construction
industry in Milwaukee, Wisconsin, where it annually received
goods valued in excess of $50,000 directly from suppliers lo-
cated outside the State of Wisconsin. The Respondent admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act. The Respondent expressly denies that PPC and
Pieper are a single-employer. However, for purposes of judicial
economy, Pieper and PPC shall be treated as a single- employer
for the information request at issue in the complaint and any
decision or remedial order issued and enforced by the Board or
appropriate Court of Appeals in this case (GC Exh. 14).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Facts
On March 22, 1977, Respondent entered into a letter of as-
sent to the collective-bargaining agreement between the Union
and the National Electrical Contractors Association, Milwaukee
Chapter (NECA), and agreed to be bound by such future
agreements unless timely notice was given (GC Exh. 3). NECA
and the Union negotiated the most recent June 1, 2000, to May
31, 2003 inside wiremen agreement on behalf of approximately
100 signatory employers including Respondent (GC Exh. 2).
The collective-bargaining agreement contains the following
provision in article XII, section 12.05:

No employer shall allow an employee to hold and no
employee shall hold stock in any shop or company em-
ploying employees covered by the agreement. Avoidance
of the Intent of this section shall not be allowed by pre-
tense of ownership of stock or interest in the subject con-
tracting business by an immediate member of the fam-
ily.[2]

On January 10, 2000, Respondent’s chairman/CEO, Richard
R. Pieper Sr., issued a memorandum to all employees inform-
ing them that approximately 76 percent of the employees were
interested in purchasing stock in the Employer (R. Exh. 7). In

2 If an applicant for employment owned stock, the employer would
be in violation of the agreement if it hired the applicant. Likewise, if a
wife owned stock, her husband could not be employed under the provi-
sions of the agreement.
February 2000, the Union in its Relay newsletter to members,
referred to the fact that one of the signatory employers to the
parties’ collective-bargaining agreement was proposing to sell
stock to his employees and referenced the section 12.05 provi-
sion. Union Business Manager Paul Welnak opined that article
XII would have to be changed to allow employees to own
stock. Welnak indicated that any changes to the stock owner-
ship article would have to be completed during upcoming nego-
tiations and all the employers and the Union would have to
agree (R. Exh. 5).
The parties’ to the NECA agreement commenced renewal
negotiations in advance of the May 31, 2000 expiration date.
NECA proposed a number of changes to the agreement includ-
ing a proposal submitted by Respondent to delete section 12.05.
After extensive discussions between the Employer and the Un-
ion on section 12.05, the provision remained unchanged and
was included in the parties’ current collective-bargaining
agreement.
In the August 2000 Relay newsletter, Welnak addressed the
issue of the stock ownership issue with his members.3
3 The August 2000 Relay newsletter read:
I have always refrained from identifying individual contrac-
tors in this newsletter or in public. I can no longer do so due
to a pending issue. Pieper Electric has proposed an Em-
ployee Stock Ownership Plan to its employees. I will not at-
tempt to argue the merits or what I perceive to be disadvan-
tages of the Plan. I will merely set the record straight on
494’s position on this issue.
The Milwaukee Inside Agreement states in Article XII,
Section 12.05 “Holding Stock-No employer shall allow an
employee to hold, and no employee shall hold stock in any
shop or company employing employees covered by this
agreement. Avoidance of the intent of this section shall not
be allowed by pretense of ownership of stock or interest in
the subject contracting business by an immediate member of
the family.” This section of the contract was discussed dur-
ing our recently negotiated contract. The employers had
brought it to the table. It was not changed, just as some of
the issues 494 brought to the table were not changed, and it
is now a dead issue. Pieper Electric is now saying that you
will not buy stock in Pieper, but in PPC a holding company.
The Executive Board of Local 494 and I are not interested in
the corporate veil and the spider web of companies that
Pieper has created. As in any violation by a 494 member, of
the agreement or constitution, charges could be filed. Trials
of those charged are heard by the Local 494 Executive
Board. We will view employee stock ownership as a viola-
tion of the Milwaukee Inside Agreement and the IBEW
Constitution, Article XXV, Section 1, Subsection (g)
“Wronging a member of the I.B.E.W. by any act or acts
(other than the expression of views or opinions) causing him
physical or economic harm.” The violation of the Constitu-
tion will be considered because PPC owns many non-union
electrical contracting firms, most of them in the State of
Georgia. However, they also own Carroll Electric who oper-
ates in Janesville, Beloit, Jefferson and Watertown, Wiscon-
sin, and have been known to enter into 494’s jurisdiction.
There is also a problem with all of the 494-benefit plans-
Health and Welfare, Pension, Annuity, etc. These are Taft
Hartley Trust Funds and participation by employers, or
owners, is a violation of federal law. I believe that holding
PIEPER ELECTRIC, INC. 1241
On August 28, 2000, the Union called a special meeting for
Respondent’s employees to discuss concerns regarding the
stock purchase plan (R. Exh. 4).
On September 15, 2000, Respondent distributed to all em-
ployees a list of questions and answers from employee meet-
ings concerning the stock purchase plan (GC Exh. 7).
By memorandum dated September 20, 2000, Respondent in-
formed employees that the stock ownership plan had been ap-
proved and purchase of the stock would commence on January
1 (GC Exh. 6).
On January 2, by letter, Respondent communicated with em-
ployees seeking their attitudes toward owning stock in the Em-
ployer (GC Exh. 8).
On January 5, Welnak sent a letter to Respondent informing
it that the Union has long taken the position that it would be a
contract violation for Respondent to sell to, or for union mem-
bers to own stock in Respondent. Accordingly, the Union re-
quested that the Employer provide it with a list of any and all
union members that are participating in the program (GC Exh.
9).
By letter dated January 22, Respondent informed the Union
that it has no knowledge and possesses no records relating to
the information it requested, and is unable to provide the infor-
mation (GC Exh. 10).
On March 12, Welnak wrote a second letter to Respondent
and requested a list of each union member who has been solic-
ited to participate in the program and any union member who is
participating in the program. The Union informed Respondent
that the information was necessary to carry out its responsibili-
ties and to administer the parties’ collective-bargaining agree-
ment (GC Exh. 11).
By letter dated March 15, Respondent informed the Union
that it is under no obligation to provide the information. In
addition, Respondent apprised the Union that it has come to its
attention that threatening statements have been made concern-
ing participation by union members in the stock ownership
plan, and that such statements may be motivated by the Union’s
efforts to organize certain nonunion electrical contracting firms
(GC Exhs. 12, 13). Thus, even if Respondent possessed such
information, it would question the relevancy of the requested
information and the legality of the request itself.
B. Analysis
The General Counsel alleges in paragraph 6 of the complaint
that the information requested by the January 5 and March 12
letters is necessary for and relevant to the Union’s performance
of its duties as the exclusive collective-bargaining representa-
tive. Since the Respondent has failed and refused to furnish the
Union with the information, it is failing and refusing to bargain
collectively and in good faith with the exclusive collective-

stock would make you a part owner in a company. As you
can see, there are a lot more obstacles here than just Paul
Welnak, as you may have been led to believe. In addition, I
have discussed this issue with Tim Driscroll the Business
Manager of IBEW Local 2150. He is also opposed to this
proposal and will be addressing it with all of the outside line
construction members that he represents.
bargaining representative of its employees in violation of Sec-
tion 8(a)(1) and (5) of the Act.
Respondent opines that the bare assertion that a union needs
information does not automatically require an employer to pro-
duce it. Under the particular circumstances of this case, the
Respondent argues that the Union does not need the names of
the employees who have purchased stock in the plan. Indeed,
the Respondent points to the fact that the Union did not need
the information to prepare for and file a grievance or to prepare
for arbitration. Rather, the Union acknowledged that it needed
the information to determine whether internal discipline was
warranted against union members for possible breach of the
parties’ agreement or the Union’s constitution and bylaws. The
Respondent contends that since the information was not needed
for issues relating to wages, hours, or working conditions, but
rather for potential discipline against employees or to leverage
the Employer into granting recognition to affiliate nonunion
employers, there was no need to provide the information to the
Union.4 Lastly, the Respondent argues that since the Union
was willing to consider eliminating section 12.05 from their
agreement if the Respondent would consent to union recogni-
tion of several of its nonunion affiliate employers, it reflects the
true motivation of the Union. Thus, Respondent opines that
since the information was not necessary and relevant and was
sought for illegal purposes, they were privileged in refusing to
provide it.
The Board explained in Asarco, Inc., 316 NLRB 636, 643
(1995), enfd. in relevant part 86 F.3d 1401 (5th Cir. 1996):

In dealing with a certified or recognized collective-
bargaining representative, one of the things which em-
ployers must do, on request, is to provide information that
is needed by a bargaining representative for the proper
performance of its duties. NLRB v. Acme Industrial Co.,
385 U.S. 432 (1967). Following an appropriate request,
and limited only by considerations of relevancy, the obli-
gation arises from the operation of the Act itself. Ells-
worth Sheet Metal, 224 NLRB 1505 (1976). In each case,
the inquiry is whether or not both parties meet their duty to
deal in good faith under the particular facts of the case.
NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). . . . The le-
gal standard concerning just what information must be
produced is whether or not there is “a probability that such
data is relevant and will be of use to the union in fulfilling
its statutory duties and responsibilities as the employees’
exclusive bargaining representative.” Bohemia, Inc., 272
NLRB 1128 (1984).

Applying these principles, I find that the information re-
quested by the Union is relevant and necessary for the follow-
ing reasons.5
4 To further support its argument that it had no obligation to provide
the information, Respondent asserts that sec. 12.05 is illegal and con-
trary to public policy.
5 The Board in Grinnell Fire Protection Systems Co., 332 NLRB
1257 (2000), enfd. 236 F.3d 187 (4th Cir. 2000), cert. denied 534 U.S.
818 (2001), held that the names of employees were necessary for the
union to negotiate a successor contract. Likewise, the Board held in the
case of A-Plus Roofing, 295 NLRB 967 (1989), enfd. 39 F.3d 1410 (9th
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1242
Welnak credibly testified that he needed the information to
determine if section 12.05 of the parties’ agreement was vio-
lated.6 If he obtained the names of the union members who
subscribed to and purchased stock, he would be able to apprise
them that unless they divested their interests in the stock own-
ership plan they would be in violation of section 12.05. If an
employee were unwilling to divest their stock holdings, the
Union would inform the individual that he/she could be subject
to internal union charges and potential discipline. If the Union
did not receive the names of the union members who purchased
stock, an employee, upon request of the Union, could withhold
information that he or she actually purchased stock in the plan
or a family member made the purchase on their behalf.
I note that the Respondent entered into the Letter of Assent
in 1977 and the section 12.05 (Holding Stock) provision has
been included in all successor agreements including the one
that was scheduled to expire on May 31, 2000. At no time prior
to the expiration of that agreement did the Respondent attempt
to withdraw from NECA or inform the Union that it no longer
wanted to be bound by the agreement. Further, at no time dur-
ing the term of that agreement did the Respondent file a griev-
ance or contend that the provision was illegal or contrary to
public policy. While NECA, during negotiations that were held
prior to the expiration of the May 31, 2000 agreement proposed
to delete section 12.05, the provision was not removed and
remains in full force and effect in the parties’ current agreement
(GC Exh. 2).7 Likewise, while the Respondent could file a

Cir. 1994), that the employer’s obligation includes the duty to supply
information necessary to administer and police an existing collective-
bargaining agreement, and if the requested information relates to an
existing contract provision it thus is information that is demonstrably
necessary to the union if it is to perform its duty to enforce the agree-
ment.
6 The Union has an absolute right to police provisions of the parties’
agreement. I conclude that if the Union can establish this threshold the
Respondent’s refusal to provide the requested information violates the
Act. An employer should not be able to preclude a labor organization
from using necessary and relevant information as it sees fit. Any prohi-
bition in this manner would infringe on the internal right of a labor
organization to govern and enforce its rules and regulations.
7 I note that the Board in Richfield Oil Corp., 110 NLRB 356 (1954),
enf. 231 F. 2d 717 (D.C. Cir. 1956), cert. denied 351 U.S. 909 (1956),
held that a stock purchase plan is a mandatory subject of bargaining
because it relates to wages, and also falls within the purview of other
conditions of employment. Thus, there is a strong presumption in this
case that the stock purchase plan is a mandatory subject of bargaining. I
also note that the Supreme Court in Allied Chemical & Alkali Workers
Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971), held that
the unilateral midterm modification of a permissive subject that had
been included in the agreement did not constitute an unfair labor prac-
grievance under the current agreement that section 12.05 was
illegal and contrary to public policy, no such grievance has
been filed. Finally, I conclude that even if Welnak informed
representatives of Respondent prior to and during negotiations
for the current agreement that he would not oppose employee
stock ownership if Carroll Electric became unionized, I attrib-
ute this to posturing between parties during the course of col-
lective-bargaining negotiations and not to any illegal motive.
Thus, I do not consider this to be improper motivation that
would privilege the Respondent from providing the requested
information.
For all of the above reasons, I find that when the Respondent
refused to provide the requested information to the Union, it
violated paragraph 6 of the complaint and Section 8(a)(1) and
(5) of the Act.
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. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. At all relevant times, the Union has been the exclusive
collective- bargaining representative of the following employ-
ees of Respondent in an appropriate bargaining unit within the
meaning of Section 9(b) of the Act.

All employees performing work within the jurisdiction of the
Union for the purposes of collective bargaining, in respect to
rates of pay, wages, hours of employment and other condi-
tions of employment.

4. By failing and refusing to furnish the Union with the in-
formation requested in its January 5 and March 12, 2001 infor-
mation requests, the Respondent has failed to fulfill its statutory
obligations and has thereby engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8(a)(1) and
(5) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]

tice under the Act, although the clause could be enforced under § 301.
Even assuming that sec. 12.05 is a permissive subject of bargaining, the
Respondent to date has not repudiated or attempted to make a unilateral
midterm modification of its provisions.