Endo Painting Service Inc.

National Labor Relations Board - Board Decisions

Feb 28, 2014

360 N.L.R.B. 485 (N.L.R.B. 2014)

ENDO PAINTING SERVICE 485
360 NLRB No. 61
Endo Painting Service, Inc. and International Union
of Painters and Allied Trades, Painters Local
Union 1791. Case 20–CA–080565
February 28, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA, AND SCHIFFER
On February 22, 2013, Administrative Law Judge Ger-
ald A. Wacknov issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed a brief in support of the judge’s
decision and an answering brief, and the Charging Party
Union 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 and set
forth in full below.1
I.
On March 8, 2012,2 the Union filed a class grievance
alleging that the Respondent violated the parties’ collec-
tive-bargaining agreement by refusing to pay employees
for overtime, altering timesheets to reflect fewer hours
than employees actually worked, paying employees in
cash, and requiring some employees to use their personal
vehicles to transport workers and materials. On April 24,
the Union requested information it deemed necessary to
facilitate the processing of the grievance, including,
among other things, the names and rates of pay of em-
ployees working at particular jobsites, along with copies
of their timesheets; the names and amounts of cash paid
to employees who were paid in cash; the identification
for all vehicles owned by the Respondent; the names of
employees who were permitted to use a company credit
card to put gas into their personal vehicles; and a copy of
the Respondent’s organizational chart. Other than in-
forming the Union on July 20 that it did not maintain an
organizational chart, the Respondent did not provide any
of the requested information.
The judge found that the Respondent’s failure and re-
fusal to provide the requested information violated Sec-
tion 8(a)(5) and (1). The judge also found that the Re-
spondent’s nearly 3-month delay in informing the Union
that the requested organizational chart did not exist was

1 We shall modify the judge’s recommended Order and substitute a
new notice to conform to the judge’s findings and the Board’s standard
remedial language, and to provide for the posting of the notice in ac-
cord with J. Picini Flooring, 356 NLRB 11 (2010).
2 All dates are in 2012, unless otherwise specified.
unreasonable and thus violated Section 8(a)(5) and (1).3
For the reasons discussed below, we agree with the
judge’s findings.
II.
An employer has a statutory obligation to provide to a
union that represents its employees, on request, infor-
mation that is relevant and necessary to the union’s per-
formance of its duties as collective-bargaining repre-
sentative. See NLRB v. Acme Industrial Co., 385 U.S.
432, 435–436 (1967); and NLRB v. Truitt Mfg. Co., 351
U.S. 149, 152 (1956). This includes information neces-
sary to decide whether to file or process grievances on
behalf of unit employees. Acme Industrial, 385 U.S. at
435–439; see Disneyland Park, 350 NLRB 1256, 1257
(2007).
A.
In its exceptions, the Respondent asserts that it was not
required to provide the requested information because the
March 8 grievance was a class grievance, which, accord-
ing to the Respondent, was not permitted under the par-
ties’ agreement.4 It is well established, however, that an
employer is required to provide relevant requested in-
formation regardless of the potential merits of the griev-
ance. Schrock Cabinet Co., 339 NLRB 182, 182 fn. 6
(2003). “This principle applies even if the employer has
a colorable procedural defense to the grievance.” Des
Moines Cold Storage, 358 NLRB 488, 489 (2012) (citing
Acme Industrial, supra at 438).5 Thus, whether or not the
parties’ agreement permitted the filing of a class griev-
ance, the Respondent acted unlawfully by failing and
refusing to provide the requested information.6

3 The judge did not expressly identify the request for the organiza-
tional chart as the request underlying his unreasonable-delay finding.
The record, however, makes clear, and the parties do not dispute, that it
is the request in question. It is also undisputed that no such organiza-
tional chart exists.
4 The Respondent did not challenge the relevance of the requested
information before the judge, nor does it do so now.
5 See also Southeastern Brush Co., 306 NLRB 884, 884 fn. 1 (1992)
(rejecting employer’s argument that it did not have to comply with a
union’s information request where the underlying grievances were
allegedly procedurally defective).
6 As a result, we find it unnecessary to address, as the judge did,
whether the parties’ agreement in fact provides for class action griev-
ances.
Regarding the Respondent’s contention that the parties’ dispute over
the Union’s information request must be submitted to arbitration,
Member Miscimarra notes that the Board’s policy is not to defer infor-
mation-request disputes to arbitration, but he believes deferral to arbi-
tration could be appropriate where either (1) the scope of an infor-
mation request would be significantly affected by the merits of a par-
ticular grievance pending arbitration, and/or (2) nondeferral would
result in duplicative litigation that undermines the role played by arbi-
tration as the method agreed upon by the parties for the final adjustment
of disputes involving interpretation of collective-bargaining agree-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD486
B.
We agree with the judge that the Respondent unrea-
sonably delayed informing the Union that it did not
maintain an organizational chart.
An employer must respond to an information request
in a timely manner. See Woodland Clinic, 331 NLRB
735, 736 (2000); Iron Tiger Logistics, Inc., 359 NLRB
236, 237 (2012). This duty includes an obligation to
timely disclose that requested information does not exist.
See Postal Service, 332 NLRB 635, 638–639 (2000). In
determining whether an employer has unlawfully delayed
responding to an information request, the Board consid-
ers the totality of the pertinent circumstances. “What is
required is a reasonable good faith effort to respond to
the request as promptly as circumstances allow. In eval-
uating the promptness of the response, the Board will
consider the complexity and extent of information
sought, its availability and the difficulty in retrieving the
information.” West Penn Power Co., 339 NLRB 585,
587 (2003), enfd. in pertinent part 394 F.3d 233 (4th Cir.
2005).
On April 24, the Union requested that the Respondent
provide a copy of its organizational chart. The Respond-
ent failed to inform the Union that it did not maintain an
organizational chart until July 20, nearly 3 months later.
This was not a complex request, but the Respondent nev-
er informed the Union that it was having trouble deter-
mining whether it maintained an organizational chart,
and it did not otherwise offer an explanation for its delay
in responding. In these circumstances, the Respondent’s
delay was unreasonable. See Postal Service, 359 NLRB
56, 57–58 (2012) (1-month delay in providing readily
accessible documents was unreasonable); Postal Service,
308 NLRB 547, 551 (1992) (unreasonable to delay 4
weeks in providing information that was not shown to be
complex or difficult to retrieve).
ORDER
The National Labor Relations Board orders that the
Respondent, Endo Painting Service, Inc., Wailuku and
Waipahu, Hawaii, its officers, agents, successors, and
assigns, shall
1. Cease and desist from

ments. Labor Management Relations Act § 203(d), 29 U.S.C. § 173(d).
Such circumstances are not present here. Regarding the Respondent’s
claim that it has no duty to furnish the information because the parties’
agreement precludes class grievances, the Respondent previously arbi-
trated a class grievance, and the resulting arbitral award was enforced
in State court. Moreover, the Respondent failed to comply with the
prior court-enforced arbitral award, and no other record evidence war-
rants a finding that arbitration here would be more appropriate for
resolving the dispute over the Union’s information requests.
(a) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining
representative of the Respondent’s unit employees, and
by failing to timely inform the Union that requested rele-
vant information did not exist.
(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 to the Union in a timely manner the infor-
mation requested by the Union on April 24, 2012, insofar
as such information has not already been furnished.
(b) Within 14 days after service by the Region, post at
its facilities in Wailuku and Waipahu, Hawaii, copies of
the attached notice marked “Appendix.” 7 Copies of the
notice, on forms provided by the Regional Director for
Region 20, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respond-
ent and maintained for 60 consecutive days in conspicu-
ous places, including all places where notices to employ-
ees are customarily posted. In addition to physical post-
ing of paper notices, notices shall be distributed electron-
ically, such as by email, posting on an intranet or an in-
ternet site, and/or other electronic means, if the Respond-
ent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. If the Respond-
ent has gone out of business or closed the facilities in-
volved in these proceedings, the Respondent shall dupli-
cate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed
by the Respondent at any time since April 24, 2012.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 20 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that that Respondent has
taken to comply.

7 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.”
ENDO PAINTING SERVICE 487
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 bargain collectively with the
Union by failing and refusing to furnish it with requested
information that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees, or by failing to
timely inform the Union that requested relevant infor-
mation does not exist.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on April 24, 2012,
insofar as such information has not already been fur-
nished.
ENDO PAINTING SERVICE, INC.
Dale K. Yashiki, Esq. and Scott Edward Hovey Jr., Esq., for the
General Counsel.
Kristi L. Arakaki, Esq. and Cid H. Inouye, Esq. (O’Connor
Playdon & Guben LLP), of Honolulu, Hawaii, for the Re-
spondent.
Rebecca L. Covert, Esq. and Davina W. Lam, Esq. (Takahashi
& Covert), of Honolulu, Hawaii, for the Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice a hearing in this matter was held before me in Honolu-
lu, Hawaii, on October 16 and 17, 2012. The initial charge was
filed by International Union of Painters and Allied Trades,
Painters Local Union 1791 (the Union) on May 7, 2012, and
amended charges were filed by the Union thereafter. On July
31, 2012, the Regional Director for Region 20 of the National
Labor Relations Board (the Board) issued a complaint and no-
tice of hearing alleging violations by Endo Painting Service,
Inc. (the Respondent) of Section 8(a)(5) and (1) of the National
Labor Relations Act (the Act). The Respondent, in its various
answers to the complaint, denies that it has violated the Act as
alleged.
The parties were afforded a full opportunity to be heard, to
call, examine, and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the Acting General Counsel (the
General Counsel), counsel for the Respondent, and counsel for
the Union. Upon the entire record, and based upon my obser-
vation of the witnesses and consideration of the briefs submit-
ted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Endo Painting Service, Inc., a Hawaii cor-
poration, with an office and place of business in Wailuku and
Waipahu, Hawaii, is engaged in providing painting services on
the islands of Maui and Oahu. In the course and conduct of its
business operations the Respondent annually purchases and
receives goods valued in excess of $50,000 at its Hawaii facili-
ties directly from points outside the State of Hawaii and from
other enterprises located within the State of Hawaii, each of
which other enterprises receives such goods directly from
points outside the State of Hawaii. It is admitted and I find that
the Respondent is, and at all material times has been, an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is, and at all times
material herein has been, a labor organization within the mean-
ing of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issue in this proceeding is whether the collec-
tive-bargaining agreement between the parties precludes class
action grievances by the Union on behalf of all employees col-
lectively.
B. Facts and Analysis
Since the 1960s, the Respondent has been a signatory party
to a succession of collective-bargaining agreements between
the Painting and Decorating Contractors Association of Hawaii
and the Union. The collective-bargaining agreement in exist-
ence at the time of the hearing extended from February 1, 2008,
to January 31, 2013. About 40 contractors, including the Re-
spondent, are signatory to this agreement. The agreement con-
tains the identical grievance procedure that has been in the
contract for at least the past 10 years, as follows:
Section 17. Grievance Procedure
All grievances or disputes involving the application, interpre-
tation, or alleged violation of this Agreement shall be handled
in the following manner:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD488
Step #1. A written and signed complaint must be presented to
the Union within 7 working days from the date the alleged
grievance occurred.
Step #2. The Union Representative and the Employer or
his/her representative shall attempt to adjust the grievance or
dispute promptly.
Step #3. If the grievance or dispute is not satisfactorily ad-
justed at Step #2 within 2 working days after being submitted,
it shall be referred to the Joint Industry Committee. . . .
Step #4. If the Joint Industry Committee cannot reach a deci-
sion by a majority vote within 30 days after the grievance or
dispute is first submitted to it, then the grievance or dispute
shall be submitted to arbitration. . . .
The agreement also contains an arbitration provision (sec. 18.
Arbitration) that specifies, inter alia:
A. Within 15 days after the Joint Industry Committee reaches
an impasse on a grievance decision, the Association and the
Union shall mutually agree upon an arbitrator.
. . . .
F. No grievance subject to the grievance procedure or arbitra-
tion shall be recognized unless considered in step #1 within 7
working days after the date of the alleged violation.
The agreement establishes and defines the authority of the Joint
Industry Committee (sec. 19):
A. Composition.
1. To better the relationship between the Union and
the Employer, there is hereby established a Joint Industry
Committee . . . composed of 3 members representing the
Employers and appointed by the Association, and 3 mem-
bers representing the Union and appointed by the Union.
Both sides may select alternates who may vote when regu-
lar members are absent. Authorized actions of the mem-
bers of the committee or their agents shall be in the name
of the committee.
. . . .
B. Scope and Authority. The authority of the members of the
committee is limited by the terms of this Agreement. The
committee may determine questions relating to the application
of, interpretation of and alleged violations of this Agreement.
The committee shall not modify the terms of this Agreement.
Mitchell Shimabukuro is the Union’s business representa-
tive. Since June 2010, he has sole responsibility for filing
grievances on behalf of the Union. By letter dated March 23,
2011, to Greg Endo, Respondent’s president, Shimabukuro
filed a “Class Action Grievance Regarding Violations of Sec-
tions 9, 13, 14 and 15 of the Collective Bargaining Agreement
with IUPAY Local 1791” against the Respondent.1 The letter,
inter alia, is as follows:

1 Insofar as the record shows, this is the first class action grievance
Shimabukuro has brought against any employer. The record does not
show whether his predecessor brought class action grievances.
Pursuant to section 17 of the collective bargaining agreement
the [Union] hereby submits this class action grievance over
the misapplication, misinterpretation, and violations of the
collective bargaining agreement by your company.
We have received reports and complaints indicating that Endo
Painting Service, Inc’s payment of compensation is not in
compliance with classifications and wages. . . .
It is unlawful for a contractor to make payment of compensa-
tion in cash contrary to the wages and classification . . . and to
allow employees to smoke marijuana and drink on state job
sites.
We request you to cease and desist from the aforementioned
violations of the agreement, take appropriate corrective ac-
tions, make employees whole, and afford other appropriate re-
lief to all bargaining unit employees and the union. (Empha-
sis added.)
On April 28, 2011, a hearing on the grievance was held be-
fore the Joint Industry Committee. On April 29, 2011, the Joint
Industry Committee, comprised of three employer representa-
tives and three union representatives, unanimously issued an
award in favor of the Union, as follows:
Based on the evidence presented at the hearing the Joint In-
dustry Committee has decided to uphold and to sustain the
March 23, 2011 class grievance filed against Endo Painting
Service, Inc. The Committee finds that the Employer violated
the collective-bargaining agreement by paying employees in
cash without making proper deductions of payroll and other
taxes, and its failure to make appropriate payments for trust
fund contributions.2 In addition the Committee finds that En-
do Painting Services Inc. has failed to take appropriate safety
measures according to the drug policy in the collective bar-
gaining agreement.
Accordingly, the employer is ordered (a) to cease and desist
from making cash payments to its bargaining unit employees
without appropriate deductions and payment of contributions
to the trust funds for all hours of work, (b) to produce the
books and accounts of its payroll of bargaining unit employ-
ees from January 1, 2010 to the present indicating all hours
worked for examination by an independent certified public
accountant who shall calculate the amount of back pay and
contributions due and owing to the trust funds under Section
19J, (c) to pay damages to affected employees and to the trust
funds as formulated by the certified public accountant,(d) to
pay cost and attorney’s fees for enforcement of this order un-
der Section 32 of the collective bargaining agreement, and (e)
review with its employees the drug policies under the collec-
tive bargaining agreement and to report to the union of the
safety measures it has taken to comply with its drug and alco-
hol policies at all jobsites.

2 Gregory Endo, Respondent’s president, testified in this proceeding
that during the Joint Industry Committee hearing on April 28, 2011, he
acknowledged that the Respondent was making cash payments to em-
ployees on occasion.
ENDO PAINTING SERVICE 489
This decision is supported by a unanimous vote of the Joint
Industry Committee. It is final and binding upon the parties
under Section 19G of the collective bargaining agreement.3
The Respondent refused to comply with the award. On June
28, 2012, the Hawaii Circuit Court entered an Order enforcing
the award and order of the Joint Industry Committee. The
Court’s Order notes that, “Prior to and at the April 28, 2011
[Joint Industry Committee] hearing the representatives of the
Employer admitted that Employer had previously made cash
payment to its employees, and failed to pay wage and benefits
as required by the collective bargaining agreement.” The Court
issued a subsequent confirming Judgment on July 16, 2012.
The matter is currently pending on the Respondent’s appeal
before the Hawaii Court of Appeals.
On March 8, 2012, Shimabukuro filed another class action
grievance (MS-12-001) against the Respondent because of
signed complaints by members and verbal complaints by
spouses of members regarding probable violations and continu-
ing violations of the contract by the Respondent.4 Attached to
the grievance form Shimabukuro states his belief that the Re-
spondent has made unilateral changes to the existing terms of
the collective-bargaining agreement. A summary of the allega-
tions is as follows: that “in recent past [the Respondent] has
been refusing to pay overtime on jobs and admitted on voice
recordings to banking hours for employees that worked over 40
hours” in violation of the contract; that it has changed employ-
ees timesheets to reflect fewer working hours during the pay
period than the employee actually worked; that it has been pay-
ing cash to employees on the weekends; and that it has required
some employees to use their personal vehicle to transport
workers and materials.
The Respondent’s attorney replied by letter dated March 14,
2012. The letter is essentially an information request from the
Respondent to the Union, requesting the names of all employ-
ees affected by each alleged violation of the contract provi-
sions, the date of each of the alleged violations, the specific
manner in which each of the individuals has been affected by
the Respondent’s alleged failure to abide by the contract, and
the amounts they are allegedly owed. The letter concludes, “It
is Endo’s policy to comply with all the terms of the Agreement
and we believe Endo has done so.”
Shimabukuro replied by letter dated April 5, 2012, attaching
a lengthy list of names of current and former bargaining unit
employees. He asserts that, pursuant to the prior 2011 class
action grievance, the Respondent has failed to comply with an
award by the Joint Industry Committee against the Respondent

3 As noted in the contract language, the arbitration process is appli-
cable only to instances of impasse of the Joint Industry Committee.
4 Signed complaints, dated between February 21 and March 2, 2012,
introduced into evidence, are from four individuals. The employees
complain about not receiving overtime on certain jobs, receiving cash,
being required to use their own equipment and trucks on jobs, having to
bank hours for overtime work, not being given documentation for peri-
ods of unemployment and Respondent’s unwillingness to sign unem-
ployment papers, not receiving the correct amount when being paid in
cash, not being sent out on jobs after complaining about these matters,
being ordered to change timesheets, being fearful of losing their jobs if
they complain.
for certain identical violations dating back to January 1, 2010,
that the Respondent has continued and is continuing to violate
the same and other provisions of the agreement, and that the
current grievance is a continuation of the former grievance.
The Respondent’s attorney replied to the Union’s aforemen-
tioned April 5, 2012 letter by again requesting the specific in-
formation the Respondent had requested in its earlier March 14,
2012 letter. In addition, the Respondent states:
Grievance No MS-12-001 and your letter of April 8, 2012 in-
dicates that the instant case is a “class grievance.” Please
identify the provisions in the Contract that authorizes a “class
grievance” as we could not locate any such provision.
Shimabukuro replied by letter dated April 24, 2012 stating,
inter alia, that he believed the class grievance was authorized
by various provisions of the contract, namely section 3 (Union
Recognition), section 17 step #2 (Grievance Procedure), and
Section 19H (Joint Industry Committee).
In a separate letter, also dated April 24, 2012, Shimabukuro
sent the Respondent a lengthy 4-page request for information
covering unit employees employed by the Respondent “during
any period from January 1, 2010 to the present” stating, “The
information is needed to properly investigate the class action
grievance.”
The information requested includes the following: daily
timesheets or cards; daily reports; weekly reports; work logs;
the names of dates of employees who were paid cash for work
and the amounts of such payments and other related details; the
names of employees who were requested to “bank” hours in
excess of 40 hours worked per week and to use the hours
banked as compensatory time off from work; the names of
employees who were allowed to use a company credit card to
fill gas in their personal vehicles; and various additional related
items in connection with the aforementioned information.
The Respondent, by letter dated May 4, 2012, replied to both
of the aforementioned letters of the Union, again essentially
reiterating what is contained in the Respondent’s prior letters,
and stating, inter alia,
Finally, your request for information dated April 24, 2012 is
not appropriate. You fail to cite any authority requiring Endo
to provide the information you request. Your request, coupled
with your failure to provide any written complaints from
workers, further suggests that you do not have any facts or ba-
sis for commencing the instant grievance as the requested in-
formation would be unnecessary and/or already known by
you, if you had valid written and signed complaints from ac-
tual workers. As mentioned in our previous letter, com-
mencement of a grievance without any written and signed
complaints from workers, and attempting to create a case af-
ter-the-fact, is improper and Endo will pursue appropriate
remedies.
Shimabukuro replied by letter dated May 22, 2012, enclosing
complaints from the four employees who had submitted them to
the Union prior to the initial filing of the class action grievance.
He also states that:
. . . class grievances are well recognized in labor relations.
There is nothing in the collective bargaining agreement which
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD490
prohibits class grievances filed by the union as the exclusive
bargaining representative under the union recognition clause
and the grievance procedure section.
He also reiterates the Union’s request that the Respondent pro-
vide the requested information.
The Respondent replied by letter dated July 20, 2012, advis-
ing that it would be willing to supply only some of the request-
ed information pertaining only to the written complaints of the
four employees, attached to the Union’s aforementioned May
22, 2012 letter, and that much of this information would be
further limited to only a 7-day time period in accordance with
the Respondent’s understanding of the specific wording of step
#1 of the grievance procedure contained in the contract.
As set forth above, Shimabukuro’s initial information re-
quest is dated April 24, 2012. During the hearing Shimabukuro
testified he needed the requested information to ascertain the
extent of the alleged violations in order to make the employees
and the trust funds whole, and explained in detail how the re-
quested information, given the nature of the Respondent’s busi-
ness and the various forms the Respondent utilized for record
keeping, would enable the Union to determine whether such
alleged contract violations had occurred and were continuing to
occur. The Respondent did not challenge the relevancy of the
requested information; that is, there was no showing by the
Respondent, either through cross-examination of Shimabukuro
or evidence proffered by the Respondent, that the requested
information, if it existed, would not be useful to the Union in
order to assist it in determining the nature and extent of the
alleged contract violations.
In addition to the 2011 class action grievance discussed
above, Shimabukuro has filed other class action grievances
under the contract against the Respondent and other signatory
contractors for various contract violations. These grievances,
however, either resulted in awards applicable only to a specific
individual or individuals, rather than a class of individuals, or,
in one instance, involved an award applicable to a group of
similarly situated employees who were required to report to
work earlier than normal without pay in order to facilitate the
employer’s daily job assignments. Although nominally entitled
class action grievances, these grievances are not particularly
instructive relative to the issues under consideration in the in-
stant matter.
C. Analysis and Conclusions
A union’s right to file grievances, and an employer’s duty to
furnish relevant information to the union in furtherance of this
right, is part of the collective-bargaining process encompassed
by Section 8(a)(5) of the Act. NLRB v. Acme Industrial Co.,
385 U.S. 432 (1967). NLRB v. Truitt Mfg. Co., 351 U.S. 149
(1956). The standard for determining whether the information
is relevant to a grievance is a “liberal, discovery-type standard.”
Acme Industrial, supra at 437. Absent a union’s clear and un-
mistakable waiver of such a statutory right, an employer vio-
lates Section 8(a)(5) of the Act if it refuses to provide the re-
quested information. Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 708 (1983).
The complaint alleges that the Respondent’s failure to fur-
nish the requested information, and its delay in responding to
the Union’s information request, is violative of Section 8(a)(1)
and (5) of the Act.
The General Counsel and Union maintain that since there is
no language in the agreement that specifically precludes a class
action type of grievance, nor any contract language that specifi-
cally precludes the Union from requesting grievance-related
information from the Respondent, there has been no clear and
unmistakable waiver of the Union’s right to this information.
Moreover, the fact that the Joint Industrial Committee in 2011
recognized class grievances and awarded a class-action type
remedy, further shows that such grievances are not precluded
by the contract. Therefore the Respondent’s refusal to furnish
the information is clearly unlawful.
The Respondent maintains that the contract language itself
does indeed establish such a clear and unmistakable waiver.
The Respondent argues that the grievance procedure is employ-
ee-specific, and that the clear intent of the exclusive grievance
procedure is to provide for the prompt resolution of specific
employees’ immediate (within 7 working days) grievances.
Accordingly, class action grievances requesting remedial action
over extended periods of time on behalf of the entire bargaining
unit are clearly precluded by such express contract language.
Further, as the Union has thus clearly and unmistakably waived
its right to bring class action grievances, it follows that the
Union is not entitled to information in order to investigate such
grievances; accordingly, the Respondent is clearly not required
to furnish the information—encompassing voluminous and
dated documents from 2010 to the present—which the Union
has requested. Finally, the Respondent maintains that as it was
not at the time represented by counsel, its participation in the
2011 Joint Industry Committee class action grievance hearing
and its failure to challenge the jurisdiction of the committee
may not be relied upon as evidence that the committee did not
exceed its authority under the contract.
The Respondent’s foregoing interpretation of the grievance
language, while not implausible, is problematic in that it se-
verely limits the Union in the exercise of statutory rights, and it
is unlikely that any union would be amenable to such re-
strictions. Neither the General Counsel nor the Union has prof-
fered an interpretation of the grievance language. However, by
filing the class action grievance it seems apparent that Shima-
bukuro has taken the position that once a complaint, or series of
complaints, have been submitted to the Union, and the Union
has reason to believe that the alleged contract violations are not
unique to specific individuals but are common to all bargaining
unit employees, the Union may, at its discretion, bring the
grievance as a class action on behalf of all adversely affected
employees. This, it seems, is an eminently reasonable interpre-
tation of the contract language in that it is expansive and con-
sistent with the Union’s statutory rights and obligations.
Accordingly, while the grievance language lends itself to
varying interpretations, I find, in agreement with the position of
the General Counsel and Union, that nothing in the contract
constitutes a clear and unmistakable waiver of the Union’s right
to bring class action grievances. The General Counsel and
Union, relying on Metropolitan Edison Co., supra, maintain
that this is the end of the matter and the Respondent’s refusal to
furnish the requested information is therefore unlawful. The
ENDO PAINTING SERVICE 491
Respondent maintains that in the event the contract language is
not deemed to be self-explanatory and is subject to interpreta-
tion, the matter must be submitted to interim arbitration before
the Board can determine the merits of the instant complaint.
The contract specifically provides that the Joint Industry
Committee is the final arbiter of the grievance or dispute except
in instances of impasse. Absent impasse, there is no recourse to
arbitration. The contract scheme for the resolution of disputes
provides that the Joint Industry Committee may determine
questions relating to the application of, interpretation of and
alleged violations of the agreement. Its determinations are final
and binding on all parties to the agreement. The class action
nature of the 2011 grievance was or should have been clearly
apparent to the Respondent’s president, Greg Endo, who at-
tended the hearing.5 There was no objection from him that the
committee was unauthorized to entertain such grievances.6 The
Respondent appears to take the position that because Greg En-
do did not raise the issues at the April 28, 2011 hearing, the
committee considered the Respondent to be either implicitly
conceding the Union’s right to file class action grievances or
otherwise simply overlooked and failed to consider whether the
contract permitted class action grievances or imposed time
limitations on grievance remedies. There is no record evidence
to support this assumption. The Joint Industry Committee,
comprised of “regular members,”7 is tasked with applying,
interpreting, and enforcing the contract. It is reasonable to
presume, absent any evidence to the contrary, that its members
are conversant with and knowledgeable regarding the contract
as a whole, including its grievance provisions, and that they
endeavor to carry out their duties in accordance with their un-
derstanding of the authority and responsibilities conferred on
them by the contract.
The committee award, I find, validates the Union’s right un-
der the contract to bring class action grievances.8 Moreover,
the committee award, I find, validates remedies commensurate
with the violation, as the committee imposed a remedy requir-
ing, inter alia, the production of records back to January 1,
2010, and payment of backpay and trust fund contributions
from January 1, 2010, to the present for all adversely affected
bargaining unit employees.9 As noted, the Hawaii Circuit

5 As noted above, the grievance letter is headed “Class Action
Grievance.” The letter requests the following relief: “. . . make em-
ployees whole, and afford other appropriate relief to all bargaining unit
employees and the union.” (Emphasis added.)
6 Greg Endo testified that at the time of the hearing he did not know
what a class grievance was, that he was not conversant with the con-
tract, and that, as this was the first Joint Industry Committee hearing he
had ever attended, “. . . we pretty much got runned over because I
wasn’t prepared for it.”
7 See sec. 19(A)(1) of the contract: “. . . there is hereby established a
Joint Industry Committee . . . composed of 3 members representing the
Employers and appointed by the Association, and 3 members represent-
ing the Union and appointed by the Union. Both sides may select alter-
nates who may vote when regular members are absent.”
8 The fact that the 2011 grievance is not identical with the instant
2012 grievance is therefore not a relevant distinction.
9 After the Respondent became represented by counsel, apparently
in 2012, there was no request for a rehearing regarding either the Un-
Court enforced this award. Accordingly I find, contrary to the
Respondent’s position, that interim arbitration of the contractu-
al grievance provisions is neither warranted nor feasible given
the 2011 award of the Joint Industry Committee under the con-
tractual scheme established by the Contractors Association and
the Union.
Square D Co. v. NLRB, 332 F.2d 360 (9th Cir. 1964), upon
which the Respondent relies, is distinguishable. In Square D,
the court did not simply rely on the contract language in deter-
mining that the matter should be resolved through arbitration;
rather it found that as a result of the parties’ substantial bargain-
ing history regarding the group incentive plan, and the omission
of the plan from the collective-bargaining agreement, the matter
of whether the Union had waived its right to file a grievance
over and request information regarding the group incentive plan
was initially a matter for arbitration. Here there is no record
evidence concerning the negotiating history of the grievance
procedure and, moreover, the 2011 decision of the Joint Indus-
try Committee is final, binding and decisive. As noted, absent
impasse, the contractual scheme provides no recourse to arbi-
tration.
The Respondent’s reliance on Society of Professional Engi-
neering Employees in Aerospace v. Spirit Aerosystems, 2012
WL 5995552 (D. Kansas, November 30, 2012), is inapposite.
In this summary judgment case the district court determined
that certain employee-specific contract language contained in
the grievance procedure, coupled with other specific affirma-
tive contract language, warranted the finding that the union in
effect had waived its right to bring a particular class action
matter—employee performance plans—to arbitration. In the
instant case there is no additional specific contract language
bearing on the Union’s right to bring a class action grievance;
rather the Respondent relies solely on the aforementioned
grievance machinery language in the contract.
The instant 2012 class action grievance, as Shimabukuro
notes, is in part a continuation of the 2011 grievance, and in
addition includes other alleged contract violations. The Union
has requested an abundance of record information from the
Respondent, covering many employees10 and dating back to
January 1, 2010, in order to enable the Union to investigate and
present the grievance to the Joint Industry Committee. I find
that the contract language, coupled with the 2011 decision of
the Joint Industry Committee, is dispositive of both matters.
Thus, the Respondent has failed to show by clear and unmis-
takable evidence that the Union waived its right to file class
action grievances, and has also failed to show by clear and
unmistakable evidence that the Union waived its right to pursue
grievance remedies encompassing more than a 7-day time peri-
od. Metropolitan Edison Co. v. NLRB, supra.
Accordingly I find that the Union is entitled to obtain infor-
mation from the Respondent in furtherance of its grievance in
accordance with well-established guidelines.

ion’s right under the contract to bring class action grievances, or the
extent of the remedy permitted by the contract.
10 While the employee complement is not constant and may vary
considerably throughout the contract term, it appears the number of unit
employees may vary from about 50 to 80 during any given period.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD492
As noted above, the Union has requested an abundance of in-
formation. The Respondent, in its brief, maintains that the
Union’s request for information constitutes harassment and is
overbroad, unduly burdensome and in bad faith, and that some
of the requested information is confidential and proprietary.
During the hearing Shimabukuro explained in detail his under-
standing of the records routinely maintained by the Respondent,
and the Union’s reasons for believing that the requested records
would enable the Union to investigate the grievance and assist
the Union in presenting its case to the Joint Industry Commit-
tee.11 The Respondent had an opportunity during the hearing to
show that the Union was either not entitled to the information
or that the information would not be probative of any issues
relative to the Union’s investigation and processing of the
grievance.12 It did not do so. Nor did it show the alleged con-
fidential and proprietary nature of any information.
The Respondent further maintains that its recordkeeping is
rather haphazard and disorganized, that it or its supervisors may
not have retained and/or may be unable to locate some of the

11 I credit the testimony of Shimabukuro, who testified at length and
appeared to be a forthright witness with a good understanding of the
Respondent’s operations relative to the unit employees. The Respond-
ent has merely asserted but has not demonstrated by any record evi-
dence that Shimabukuro’s filling of the grievance or request for infor-
mation was designed to harass the Respondent or was otherwise not in
good faith. The grievance was based on the complaints of employees
and others. The alleged contract violations are serious in nature, and
their extent cannot be determined without substantiating records.
Moreover, Shimabukuro’s request for information dating back to Janu-
ary 2010, is not arbitrary and without foundation, but rather is coexten-
sive with the related 2011 award of the Joint Industry Committee.
12 I credit the testimony of Shimabukuro, who testified at length and
appeared to be a forthright witness with a good understanding of the
Respondent’s operations relative to the unit employees. The Respond-
ent has merely asserted but has not demonstrated by any record evi-
dence that Shimabukuro’s filling of the grievance or request for infor-
mation was designed to harass the Respondent or was otherwise not in
good faith. The grievance was based on the complaints of employees
and others. The alleged contract violations are serious in nature, and
their extent cannot be determined without substantiating records.
Moreover, Shimabukuro’s request for information dating back to Janu-
ary 2010, is not arbitrary and without foundation, but rather is coexten-
sive with the related 2011 award of the Joint Industry Committee.
records, and that its efforts spent in attempting to gather and
produce the records would therefore necessarily be expensive
and time consuming. While this may be the case, I find the
argument that the Respondent’s lax recordkeeping practices
would place a significant burden on it to search for and produce
the records is not a valid reason for its failing and refusing to
make a good-faith effort to do so.13
On the basis of the foregoing, I find that the Respondent has
violated Section 8(a)(1) and (5) of the Act as alleged by delay-
ing and failing and refusing to furnish information necessary
for the Union to investigate and present its grievance to the
Joint Industry Committee.
CONCLUSIONS OF LAW AND RECOMMENDATIONS
1. The Respondent Endo Painting Service, Inc. is an em-
ployer 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. The Respondent has violated and is violating Section
8(a)(5) and (1) of the Act as alleged in the complaint and found
herein.
THE REMEDY
Having found that the Respondent has violated and is violat-
ing Section 8(a)(5) and (1) of the Act, I recommend that it be
required to furnish the Union with the information the Union
has requested as specifically set out in paragraph 7 of the com-
plaint and notice of hearing in this matter, which information
request is hereby incorporated by reference in this decision.
I shall also recommend that the Respondent be required to
cease and desist from in any other like or related manner inter-
fering with, restraining, or coercing its employees in the exer-
cise of their rights under Section 7 of the Act. Finally, I shall
recommend the posting of an appropriate notice, attached here-
to as “Appendix.”
[Recommended Order omitted from publication.]

13 In the event the parties are unable to resolve differences regarding
the production of records, such matters may be relegated to the compli-
ance stage of this proceeding.