Hiatt Electric-Hiatt Plumbing

National Labor Relations Board - Board Decisions

Aug 25, 1981

257 N.L.R.B. 960 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hiatt General, Inc. d/b/a Hiatt Electric-Hiatt
Plumbing, and Hiatt Electric, Inc. and Interna-
tional Brotherhood of Electrical Workers, Local
No. 112, AFL-CIO. Case 19-CA-12147
August 25, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On February 17, 1981, Administrative Law
Judge Earldean V. S. Robbins issued the attached
Decision in this proceeding. Thereafter, Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed a brief in support of the Ad-
ministrative Law Judge's Decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,' find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Hiatt General,
Inc. d/b/a Hiatt Electric-Hiatt Plumbing, and Hiatt
Electric, Inc., Yakima, Washington, its officers,
agents, successors, and assigns, shall take the action
'Respondent excepts to the Administrative Law Judge's ruling at the
hearing which permitted the General Counsel to amend the complaint by
adding four 8(a)(1) allegations. Respondent contends that the complaint
and amended complaint did not allege 8(a)(l) violations, that the original
charge alleged only a derivative 8(a)(l) violation, and that the alleged
violations are barred by Sec. 10(b) of the Act. Respondent also contends
that the complaint as amended at the hearing, insofar as it alleges specific
8(aXl) conduct, departs so drastically from the original charge, com-
plaint, and amended complaint that Respondent was denied due process.
We find no merit in Respondent's exception. The charge was filed on
March 3, 1980, alleging, inter alia, that Respondent made threatening
statements to employees concerning their employment. The complaint as
amended at the hearing alleges 8(aXl) violations occurring in October or
November 1979, all within the 10(b) period. We note that counsel for the
General Counsel apprised Respondent's counsel of the specific amend-
ments to the complaint several days prior to the hearing, and that the
protagonist of the 8(aXl) violations was present and testified at the hear-
ing after the amendments and relevant employee testimony.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing her find-
ings.
We also find totally without merit Respondent's allegations of bias and
prejudice on the part of the Administrative Law Judge. Upon our full
consideration of the record and the Administrative Law Judge's Deci-
sion, we find no evidence that she prejudged the case, made incorrect or
prejudicial rulings, or demonstrated any bias or hostility against Respond-
ent in her conduct of the hearing or her analysis and discussion of the
evidence.
257 NLRB No. 121
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
Accordingly, we hereby notify you that:
WE WILL NOT refuse to bargain collectively
with International Brotherhood of Electrical
Workers, Local No. 112, AFL-CIO, as the ex-
clusive collective-bargaining representative of
all employees in the appropriate unit, by refus-
ing to furnish the Union with requested finan-
cial information in order to substantiate our
claim that we are financially unable to meet
the Union's economic demands. The appropri-
ate unit is:
All of our electrical worker employees at
our Yakima, Washington, operations, ex-
cluding estimators, clerical employees,
guards and supervisors as defined in Section
2(11) of the National Labor Relations Act.
WE WILL NOT interrogate employees as to
their union activities and whether they intend
to vote for the Union.
WE WILL NOT threaten employees that we
will go out of business if they select the Union
as their collective-bargaining representative.
WE WILL NOT promise employees better
wages, equipment, and other working condi-
tions if they withhold their support from the
Union.
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HIATT ELECTRIC-HIATT PLUMBING
WE WILL NOT tell employees that their
union activities are jeopardizing a planned
wage increase.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights set forth above
which are guaranteed by Section 7 of the Na-
tional Labor Relations Act.
WE WILL, upon request and within a reason-
able time, furnish the Union, its auditors, and
accountants with all books and records con-
taining financial information relevant to the
substantiation of our claim that we are finan-
cially unable to meet the Union's economic de-
mands.
HIAT GENERAL, INC. D/B/A HIATT
ELECTRIC-HIATT PLUMBING, AND
HIATT ELECTRIC, INC.
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge:
This matter was heard by me in Yakima, Washington, on
September 18, 1980. The charge was filed by Internation-
al Brotherhood of Electrical Workers, Local No. 112,
AFL-CIO, herein called the Union, and served on Re-
spondent Hiatt General, Inc. d/b/a Hiatt Electric-Hiatt
Plumbing, herein called Hiatt General, on March 3,
1980. The amended complaint, which issued on Septem-
ber 3, 1980, alleges that Respondent Hiatt General and
Respondent Hiatt Electric, Inc., herein called Hiatt Elec-
tric, violated Section 8(a)(l) and (5) of the National
Labor Relations Act, as amended, herein called the Act.
The principal issues herein are whether Respondents
violated the Act by refusing to permit the Union's ac-
countants to inspect Respondent's financial books in rela-
tion to Respondent's alleged claims of financial inability
to meet the Union's bargaining proposals, and whether
Respondent engaged in certain conduct violative of Sec-
tion 8(aX)(1) of the Act.
Upon the entire record including my observation of
the demeanor of the witnesses, and after due considera-
tion of the post-hearing briefs filed by the parties, I make
the following:
FINDINGS OF FACT
I. JURISDICTION
At all times material herein, Respondent Hiatt Gener-
al, a Washington corporation with an office and place of
business in Yakima, Washington, has been engaged in
electrical and plumbing contracting work. During the 12-
month period preceding the issuance of the complaint
herein, which period is representative of all times materi-
al herein, in the course and conduct of its business oper-
ations, Respondent Hiatt General had gross sales of
goods and service valued in excess of $500,000 and
during that same period purchased and caused to be
transferred and delivered to its facilities within the State
of Washington goods and materials valued in excess of
$50,000 directly from sources outside said State, or from
suppliers within said State which in turn obtained such
goods and materials directly from sources outside said
State.
On or about April 1, 1980, Respondent Hiatt Electric
was formed to take over the assets, and assume the liabil-
ities, of Respondent Hiatt General, and to engage in the
same business operations, at the same location, selling the
same products and/or services to substantially the same
customers, and employing the same individuals as had
been previously employed by Respondent Hiatt General.
Darrell Hiatt is corporate officer, manager, and majority
stockholder of both Hiatt General and Hiatt Electric.
The complaint alleges that Hiatt Electric has contin-
ued as the employing entity and is a successor of Re-
spondent Hiatt General. Respondent Hiatt General and
Respondent Hiatt Electric, herein collectively called Re-
spondent, admit the formation and purpose of Respond-
ent as described above but deny that Respondent Hiatt
Electric is a successor to Respondent Hiatt General inas-
much as Respondent Hiatt General is still operating. Re-
spondent admits, and I find, that Respondent Hiatt Gen-
eral is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. Further,
Respondent stipulates, and I find, that Respondent Hiatt
General and Respondent Hiatt Electric are joint employ-
ers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is now, and at all times material herein
has been, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
On November 13, 1979,' the Union won a Board-con-
ducted representation election and on November 26,
1979, was certified as the exclusive collective-bargaining
representative of the employees of Respondent in the fol-
lowing unit:
All electrical worker employees of Respondent at
its Yakima, Washington operations; excluding esti-
mators, clerical employees, guards and supervisors
as defined in the Act.
According to the undenied testimony of employee
George Hughes and Ronald Lee Zike, 2 to 4 weeks
before the election Darrell Hiatt had a meeting with Re-
spondent's six electrician employees. According to
Hughes, Hiatt said he understood that some of the em-
ployees wanted to go union. He said there was going to
be an election and he wanted to know who was going to
vote to go union. This question was directed generally at
I Unless otherwise indicated, all dates herein in October, November.
and December are in 1979 and all other dates are in 1980.
961
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all the employees, however, he specifically asked the
foreman how he was going to vote. The foreman replied
that he did not know.2 Hiatt said that if they did select
the Union as their collective-bargaining representative he
was not going to bid any more jobs, that he would just
finish the ones he had and quit. Some of the employees
said they were not making enough money to pay their
bills. Hiatt said he was considering a raise at the end of
the year of about 50 cents.
Hughes further testified that he said the estimator had
stated on several occasions that union shops had under-
bid Respondent and Respondent should be making
enough money to pay them at least $10 an hour instead
of $7 or $8, that they could not live on the wages they
were receiving. Hiatt said he did not need a union for a
partner, that he was going to run his own business and
no one was going to tell him how to do it. Hiatt also
said that, if they would reconsider and vote against the
Union, they would get better equipment and perhaps two
men to a job instead of one, and he would consider
giving them a raise at the first of the year. Hiatt further
asked why those who wanted to go union did not go get
themselves a union card and go work at Hanford. He
then said, "They won't give you one anyhow; they are
just using you. They will just give you a white ticket
and work you for a week or two and then let you go."
Zike testified that Hiatt said he could not afford to go
union because if he paid union scale he could not com-
pete with other shops in the area. They discussed why
the employees wanted union representation, that they
wanted better wages. Hiatt said that, at the first of the
year, they were supposed to receive a wage increase but
that the union matter had jeopardized this, that it might
be considered a bribe. Zike said that since Respondent's
bids were so close to those of union shops he could not
see why Respondent could not afford to pay union
wages and still be competitive. Hiatt said that, whether
they voted to go union or not, he was not going to go
union. Hiatt also said he did not want to get a lot of
work in and have the employees go out on strike so
there would be no workmen to do the jobs. Zike said he
understood this to mean that Respondent would not bid
jobs until the union matter was settled.
Zike testified that he does not remember if anyone
asked why they wanted a union. The discussion was
more why they wanted a raise. Although Hiatt testified,
he did not testify in regard to this meeting. I credit
Hughes and Zike. I found them to be honest, reliable
witnesses whose testimony was in substantial agreement.
I further find that a composite of their testimony more
accurately reflects what occurred.
On November 18 or 19, George Elgin, business man-
ager and chief executive officer of the Union, and Union
Business Agent Forrest Baugher met with Hiatt in their
first contract negotiation session. According to Baugher,
they discussed the industry generally. At that time, Hiatt
was primarily engaged in the residential market where fi-
nancing had become highly competitive. Hiatt spoke of
the housing market and the financial problems in the
I On October 24, the parties entered into a Stipulation for Certification
upon Consent Election in which it was agreed that the foreman and the
estimator would be excluded from the unit.
residential area. He said he was beginning to engage
more in the commercial field and was becoming a bigger
contractor. Baugher said they could have a lot of meet-
ings starting with outrageous proposals and eventually
work down to something in the neighborhood of the
agreements with the other commercial contractors with
whom Respondent would be competing. According to
Baugher, Hiatt asked to see an agreement and Baugher
gave him the Union's standard area commercial agree-
ment. Hiatt said he would like an opportunity to read the
standard agreement. Baugher said the agreement was
what the union contractors in the area were working
under and that was what the Union would like to have.
He said they could talk a while on the subject, that the
Union wanted to have an agreement similar to the stand-
ard area agreement. The meeting lasted 15 to 30 minutes.
Elgin mentioned that the International union had to ap-
prove any agreement.
Elgin testified that he does not recall very much about
this meeting. He does recall that wages were discussed
and that Hiatt said, considering the market he was in, $8
an hour was the top wage that Respondent could pay.
They then began discussing the electrical market in the
area and the type of electrical business in which Re-
spondent was engaged. Baugher gave Hiatt a copy of the
Union's standard area commercial agreement. Hiatt said
that, if his employees wanted to be union, they should go
to work for a union employer. At the end of the meet-
ing, Elgin said, "It appears to me that you are not inter-
ested in an agreement with Local 112." Hiatt replied,
"Well, I don't know as I would put it that way but this
is true."
Hiatt testified that the meeting began with an ex-
change of pleasantries and then they began talking about
the union contract. One of them gave him a copy of the
Union's standard area contract. Baugher asked if Hiatt
was ready to sign a contract. Hiatt replied, "Were you
willing to sign our contract." Baugher tapped his finger
on the Union's standard area contract and said, "You
know that we can't accept anything except what is in
this area contract because the international office
wouldn't approve it." Hiatt referred him back to the
offer that Respondent had made and asked if Baugher
was willing to sign Respondent's contract. Baugher said
he could not do that.
Hiatt also testified that at one of the meetings he said
$8 an hour was the maximum wage he could afford to
pay journeyman electricians and remain competitive. He
further testified that he said he was not making any
money in the electrical contracting business. Hiatt does
not specifically deny that he said that, if the employees
wanted to be union, they should go to work for a union
employer nor does he deny that he agreed that he was
not interested in signing a contract with the Union.
I do not credit Hiatt's version of what was said. Ac-
cording to him, the principal exchange consisted of
Baugher insisting that the Union would only agree to the
standard area agreement whereas Hiatt kept asking if the
Union would sign Respondent's proposal. Yet Hiatt
never submitted a proposal until the second meeting. On
the other hand, Baugher impressed me as an honest, reli-
962
HIATT ELECTRIC-HIATT PLUMBING
able witness and, although Elgin could not recall much
of what was said, his testimony tended to be corrobora-
tive of that of Baugher. Also, where Elgin testified to
statements which were not included in Baugher's ac-
count, Hiatt either admits that the statement was made in
one of the meetings or he does not deny the statement. I
credit Baugher and Elgin and find that a composite of
their testimony more accurately reflects what was said at
this first negotiation session.
Zike's undenied testimony, which I credit, is that,
about a week after the election when he was in Hiatt's
office on another matter, Hiatt asked if Zike had re-
ceived his union card since they had voted the Union in.
Zike said he had not. Hiatt asked when was Zike going
to receive it or if he was. Zike said he did not know
when he was supposed to get it or whether he was going
to get it. Hiatt said Respondent was not going to go
union and Zike was wasting his time waiting around for
Respondent to go union; that if Zike wanted to make
more money, he should get his card from the union hall
and go to work or either go out to Hanford because
"you did not have to be a union electrician to work at
Hanford." Hiatt also asked if the employees were going
to go on strike or what they were going to do, and if
they had talked to the Union at all on what they were
going to do after the election.
Hughes creditably testified, without contradiction,
that, a couple of times both before the election and
within the first 2 weeks following the election when he
was waiting outside for his ride home, Hiatt came out
and talked to him.3 Hughes made no attempt to separate
these conversations in his testimony. According to him,
Hiatt said, "We would like to know how you guys are
going to vote, if you are going to go union or what."
The employees never answered. Hiatt also said, "Why
don't you go down to the Union and get a union card,
they won't give you one." Hiatt further said he would
not go union, he would go out of business before he
would go union. He also said he was going to get new
and better equipment and work two men on a job so that
working conditions would not be as difficult.
Hughes was laid off on or about November 30. Three
to five days later, Hughes went to see Hiatt. According
to Hughes' undenied testimony which I credit, he asked
Hiatt how it was going. Hiatt said, "pretty slow."
Hughes asked if Hiatt thought he would need Hughes
later. Hiatt said that, if Respondent got more work, he
would call Hughes. They continued to talk for a few
minutes. Then Hiatt said he would never go union, that
he would go out of business first. He asked why Hughes
did not go to Hanford to work, that there were some
nonunion contractors there. Hughes said he did not think
there were. Hiatt said yes, he knew of some working out
there. Then Hiatt said, "Well, why don't you go down
to the union hall and get a card from them and go to
work. They are just using you. They won't give you a
card anyway. They will probably give you a white slip
or something like that." Hiatt further said he would quit
I Although it is not absolutely clear from the record, it appears that on
at least one of these occasions other employees were present.
bidding and go out of business before he would join the
Union.
Baugher, Elgin, and Hiatt met a second time on De-
cember 17 or 20. According to Baugher, he asked Hiatt
if he had a chance to look at the area agreement. Hiatt
said, "Yes, I have. I don't want it. I can't afford it."
Baugher said the employees had selected the Union as
their collective-bargaining representative. Hiatt replied,
"Well, if they want you to represent them, then they can
go down and go to work for you because they are not
going to get a union here and if they want a union they
can go down and work at Hanford and go down to the
union hall. Baugher said Respondent's employees wanted
the wages that the other electricians in the area to whom
they were talking were getting. Baugher said Respondent
was moving into a different field, commercial work,
whereas previously he had been operating in the residen-
tial area; and that he thought Respondent should take a
look at the commercial agreement, that the prevailing
wage rate was more prevalent with commercial work
and, if he was going to get into commercial work, he
should pay area standard wages.
Baugher further testified that Hiatt asked them to take
a look at his proposal, a mimeographed document which
he gave them during this meeting. The first page had a
clause which permitted an employee to either join or not
join the Union. Baugher said this was not a right-to-work
State and the Union could not agree to that type of lan-
guage and the wages were only half that of area standard
wages. At some point, Hiatt said, "I can't compete with
all of the people in the area." Baugher or Elgin said
there were contractors that had been in the area for 30
or 40 years who were using the Union's standard area
agreement. Hiatt said, "Well, if I can show you right
now, right in my books here today that I am not making
any money, will you just go away and forget it?"
Baugher said he could not forget it, that he would have
to talk to the employees because they were the ones who
had selected the Union to represent them.
Again Elgin does not recall much of the meeting. Ac-
cording to him, the economy and the local market were
discussed. Hiatt said it was difficult to make any money,
that at the rate he was paying now he was having trou-
ble and under a union agreement he did not see how he
could operate with the customers he presently had and
the market in which he was doing business. There were
some comments regarding union employers underbidding
Respondent on jobs. Hiatt said he did not understand
how they could do that with the union agreement. They
then discussed productivity and management's responsi-
bility in handling various jobs. Hiatt said he felt his man-
agement was just as good as the union employers' and
his method of buying material was just as good. Hiatt
again mentioned the hard time he was having and indi-
cated that he might get out of the electrical contracting
business.
Hiatt testified that the December meeting began with
an exchange of pleasantries. Then he was asked if he
would sign the Union's standard area agreement. Hiatt
said he was in a position where he could not sign that
agreement. At some point, Baugher said there was no
963
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
way the Union would sign anything other than the
standard area agreement, that the International had to
approve any agreement and it would not approve any-
thing other than the standard agreement. Hiatt asked if
the Union would sign Respondent's proposed agreement.
One of the union representatives said, "I can see that
probably you don't want to talk to us anymore." Hiatt
said that was not what he had in mind, that they could
go on negotiating. The union representative said, "No,
you don't." Hiatt said, "Well, yes, I do." The union rep-
resentatives then stormed out of the office.
This account of the meeting was given by Hiatt when
he testified on direct examination in the presentation of
Respondent's case, at which time he testified that he
could not recall anything else that was said. However,
earlier when called as an adverse witness by counsel for
the General Counsel, he admitted that he asked that, if
he could prove he was not making money in the electri-
cal contracting business, would the Union drop the
matter. He also admitted that he said he had looked
through the Union's standard area contract and he could
not afford the wage scale in that contract. 4 He further
explained that there were about 30 nonunion contractors
competing against him in the area and asserted that he
could prove that there were about 29 other contractors
in the area who were paying lower wages than Respond-
ent.
Hiatt also admitted that he said he could not pay the
union rates and stay in business, that if he had to pay the
wages in the standard area contract, he would "go
broke." He further said that he could show the Union,
according to his profit structure, that if he paid the
wages in the standard area contract, he would "go down
the tubes." Hiatt said he had made the Union an offer
and that was what he could live with. Baugher and
Elgin deny stating that the Union would not sign, nor
the International approve, anything other than its stand-
ard area agreement. However, Elgin admits that all the
electrical contractors in the commercial field with whom
the Union has a collective-bargaining agreement are
either parties to the standard area agreement negotiated
on their behalf by an employer association or are signa-
tories to a letter of assent whereby they agree to be
bound by said agreement. Elgin further admits that this
is the agreement the Union always seeks due to the re-
quirements of the pension trust fund and a most-favored-
nations clause in the standard area agreement. He denies
that the Union is required to submit all contracts to the
International for approval, although it is recommended.
In view of the admissions made by Hiatt which tend to
corroborate Baugher and Elgin and in view of my credi-
bility findings in other regards, I credit Baugher and
Elgin and find that a composite of their testimony more
accurately reflects what was said.
On January 21, Hiatt sent a written contract proposal
to the Union which reflected the then-existing wages and
terms and conditions of employment of Respondent's em-
ployees, along with a letter, the body of which reads:
' The journeyman wage rate in the Union's standard area agreement is
$14.37 an hour for 1979 with an expiration date of June 30, 1979.
There seems to be a misunderstanding. We
cannot afford your area contract, and we do not
agree to many of its provisions.
However, as I told you in our December 17
meeting, we will make a fair offer and we will bar-
gain in good faith.
Enclosed is a proposal for a complete contract.
We are willing to discuss this with you at our
mutual convenience.
Please call me if you want to negotiate.
On February 27, Baugher went to Hiatt's office and
spoke to Hiatt. According to Baugher, he said that,
every time they met in the past, it boiled down to eco-
nomics so he would like to set up a meeting to see if
things were really as bad as Hiatt said, to see if Respond-
ent was a success. Baugher said he had contacted the
Union's accountant to advise him that there would be a
possible meeting to look at Respondent's books. Hiatt
said, "Nobody looks at my books. I'm tired of your bull-
shit. Get the hell out of here. I don't want to see you no
more." Baugher stepped outside of the door and said,
"The employees have selected us to represent them
about wages, hours and conditions and I am sure their
voice will be heard." Hiatt kicked the door shut and
Baugher left.
Hiatt does not specifically deny most of Baugher's ver-
sion of the conversation. According to him, however,
Baugher made no mention of an accountant. He simply
announced, in a belligerent manner, that he was there to
see about opening Respondent's books. Hiatt replied, "I
don't think you are going to open up my books." They
exchanged a few words. Hiatt asked him to leave and
Baugher left. Hiatt did not testify as to what words were
exchanged. I credit Baugher.
On March 3, Hiatt sent another letter to the Union,
the body of which reads:
We told you in our December 17, 1979 negotia-
tion meeting that we would make a fair offer and
we will bargain in good faith.
On January 21, 1980, I sent to you a complete
proposed contract. Our proposal covered many sub-
jects of wages, hours, and working conditions. If
you had signed our proposal we would now have a
contract which would be fair to both sides and to
the men.
We met again to discuss our proposal. You insist-
ed that we sign your "area contract." We told you
that there are many portions of your area contract
that we do not agree to, could not live with, and
that we would get few, if any, jobs if we had to pay
the wages and fringe benefits that you insist upon.
It is obvious that you have not bargained in good
faith, by continuing to insist upon your "area" con-
tract.
In preparing our offer, we looked at the type of
jobs we do, the highly competitive work we do,
our present wage rates, the increase in the cost of
living, the federal government's wage guidelines,
the wages and fringe benefits paid by our competi-
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HIATT ELECTRIC-HIATT PLUMBING
tors, and our desire to make a small profit, to con-
tinue to do jobs, and to keep our men working.
Based upon all of the above and other factors, we
believe that our offer is fair. It is our final offer.
Since you have insisted upon your "area" contract,
we are at a clear impasse.
We see no reason to meet again unless you indi-
cate that you will accept our offer or something
very similar to it.
Since we are not declining to offer more money
only because we cannot afford it, we see no reason
to open any "books" for inspection.
Let us know if you are willing to accept our
offer. If not, we see no need to meet again.
Hiatt testified that, at a subsequent time, the specific
date of which he does not recall, he notified the Union
that Respondent would agree to permit someone from
the Union to look at Respondent's books provided they
did not make any copies or take notes. This offer was re-
peated to the Union's attorney in September, during the
week prior to the hearing herein.
According to Hiatt, this ban on copies and notes was
necessary in order to preserve the confidentiality of Re-
spondent's profit structure. Specifically, he was con-
cerned that Respondent's competitors might learn the
distribution of expenses to particular type work or jobs.
However, he testified that Respondent's financial records
consist of accounts receivable, accounts payable, a gener-
al ledger, and a profit-and-loss statement and that the
profit-and-loss statement was what he considered confi-
dential, information from which would aid Respondent's
competitors. He admits, however, that the profit-and-loss
statement does not indicate specific amounts for specific
jobs. According to him, he would deem it sufficient for
the Union's accountant to look at Respondent's books,
satisfy himself as to what the books showed as to matters
of interest to the Union, and then go back to the Union
and relate "yes or no" as to whatever the question was
for which the Union sought an answer.
B. Conclusion
It is well settled that an employer violates Section
8(a)(5) of the Act when it mechanically repeats a claim
of inability to pay without making the slightest effort to
substantiate the claim or to permit independent verifica-
tion. The rationale, as stated by the Supreme Court, is
that "Good-faith bargaining necessarily requires that
claims made by either bargainer should be honest
claims." This is true about an asserted inability to pay an
increase in wages. If such an argument is important
enough to present in the give and take of bargaining, it is
important enough to require some sort of proof of its ac-
curacy. N.L.R.B. v. Truitt Manufacturing Co., 351 U.S.
149, 152-153 (1956). Further, in the area of wages and
other economic issues only the employer has control of
sufficient accurate and detailed data necessary for the
union to make a reasoned evaluation of the employer's
claims. Stamco Division of the Monarch Machine Tool
Company, 227 NLRB 1265 (1977).
I find no merit in Respondent's contention that it did
not assert financial inability to meet the Union's propos-
als. Hiatt admittedly stated in negotiations that he could
not afford to meet the Union's economic proposal. He
also repeated this assertion in his January 21 letter and
he repeatedly made statements to the effect that agreeing
to the Union's economic proposal would so compromise
Respondent's competitive position that it would be
forced out of business.
In these circumstances, I conclude Respondent did
claim financial inability to comply with the Union's wage
and other economic demands. I further conclude that, by
insisting that the Union's accountant could have access
to its financial records only if no copies of its records
were made and no notes taken as to their contents, Re-
spondent placed such unreasonable conditions upon its
furnishing of such information as to negate the effective-
ness of such access.
Accordingly, I find that Respondent refused to bargain
in good faith with the Union in violation of Section
8(a)(5) and (1) of the Act by refusing to allow the Union
reasonable access to its books and records containing fi-
nancial information relevant to substantiate Respondent's
claim of its financial inability to meet the Union's eco-
nomic demands.
I also find that Respondent through Hiatt violated
Section 8(a)(l) of the Act by interrogating employees as
to their union activities and whether they intended to
vote for the Union; by threatening employees that Re-
spondent would go out of business if they selected the
Union as their collective-bargaining representative; by
promising employees better wages, equipment, and other
working conditions if they withheld their support from
the Union; and by telling employees that their union ac-
tivities were jeopardizing a planned wage increase.
CONCLUSIONS OF LAW
1. Respondents Hiatt General and Hiatt Electric are
joint employers engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All electrical worker employees of Respondent at its
Yakima, Washington, operations, excluding estimators,
clerical employees, guards and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act.
4. At all times material herein, the Union has been, and
is now, the exclusive collective-bargaining representative
of the employees in the appropriate unit within the
meaning of Section 9(a) of the Act.
5. By interrogating employees as to their union activi-
ties and whether they intended to vote for the Union; by
threatening employees that Respondent would go out of
business if they selected the Union as their collective-bar-
gaining representative; by promising employees better
wages, equipment, and other working conditions if they
withheld their support from the Union; and by telling
employees that their union activities were jeopardizing a
planned wage increase, Respondent has engaged in unfair
labor practices in violation of Section 8(a)(l) of the Act.
965
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By refusing to allow the Union reasonable access to
its books and records containing financial information
relevant to substantiate its claim of its financial inability
to meet the Union's economic demands, Respondent has
refused to bargain in good faith with the Union in viola-
tion of Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent be ordered to cease and desist therefrom and to take
certain affirmative action designed to effectuate the pur-
poses of the Act.
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to furnish the Union with
certain financial information, I shall recommend that,
upon request and within a reasonable time, Respondent
allow the Union reasonable access to its books and re-
cords containing financial information relevant to sub-
stantiate its claims of financial inability to meet the
Union's economic demands.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 5
The Respondent, Hiatt General, Inc. d/b/a Hiatt Elec-
tric-Hiatt Plumbing and Respondent Hiatt Electric, Inc.,
herein collectively called Respondent, their officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as
the exclusive collective-bargaining representative of all
employees in the appropriate unit by refusing to furnish
5 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
the Union with requested financial information in order
to substantiate Respondent's claim that it was financially
unable to meet the Union's economic demands.
(b) Interrogating employees as to their union activities
and whether they intended to vote for the Union.
(c) Threatening employees that Respondent would go
out of business if they selected the Union as their collec-
tive-bargaining representative.
(d) Promising employees better wages, equipment, and
other working conditions if they withheld their support
from the Union.
(e) Telling employees that their union activities were
jeopardizing a planned wage increase.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Upon request, and within a reasonable time, supply
the Union, its auditors, and accountants, with all books
and records containing financial information relevant to
the substantiation of Respondent's claim that it is finan-
cially unable to meet the Union's economic demands.
(b) Post at its facility in Yakima, Washington, copies
of the attached notice marked "Appendix." 6 Copies of
said notice, on forms provided by the Regional Director
for Region 19, after being duly signed by Respondent's
representative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
966