Rochester Acoustical Corp.

National Labor Relations Board - Board Decisions

May 18, 1990

298 N.L.R.B. 558 (N.L.R.B. 1990)

558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Rochester Acoustical Corp ., a wholly owned subsidi-
ary of Mader Construction Group , Inc. and-
Painters Local Union No. 150, International
Brotherhood of Painters and Allied Trades and-
Local Union No. 435 , Laborers International
Union of North America , AFL-CIO and Local
No. 11 of the International Union of Bricklay-
ers and Allied Craftsmen, AFL-CIO. Cases 3-
CA-13969, 3-CA-14923, and 3-CA-14924
May 18, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On December 20, 1989, Administrative Law
Judge James F. Morton issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, the Charging Parties filed a cross-ex-
ception, and the General Counsel and the Charging
Parties filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel. -
The Board has considered the decision and the
record in light of the exceptions, cross-exception,
and briefs' and has decided to affirm the judge's
rulings, 2 findings, and conclusions, but to substitute
the attached Order for the Order recommended by
the judge.3
ORDER
The Respondent, Rochester Acoustical Corp., a
wholly owned subsidiary of Mader Construction
1 The Charging Parties' motion to strike portions of the Respondent's
brief and the attachment to that brief, pertaining to matters that are not
part of the record developed at the hearing, is granted. See Sec 102.46 of
the Board's Rules and Regulations.
2 The Charging Parties contend in their cross -exception that the judge
erred by excluding certain testimony pertaining to a conversation be-
tween the Respondent 's president, George McCadden, and the Painters'
president, Calvin King, concerning settlement of an unfair labor practice
charge, because there was no objection to this testimony at the hearing.
As we have decided to affirm the judge's findings and conclusions that
the Respondent violated the Act as alleged, irrespective of the admissibil-
ity of the foregoing testimony, we find it unnecessary to rule on the
Charging Parties' cross -exception.
a In his recommended Order the judge fashioned a remedy to ensure
against ambiguities concerning the Respondent 's obligation to provide re-
quested information about operations of all specified entities with
"Gypsum" in their names , which the Charging Parties had reason to be-
lieve might be alter egos of the Respondent. As the General Counsel
notes in his answering brief, the recommended Order is appropriately
construed to encompass the "outstanding information requests" by the
Charging Party Unions These requests are set forth in the Acting Re-
gional Director's letter of April 12, 1989 , referring generally to
"Gypsum" as the pertinent entity. In order to avoid any confusion re-
garding the information to be furnished , we shall substitute the attached
Order for the judge's recommended Order and require the Respondent to
provide the requested information as set forth in the Acting Regional Di-
rector's April 12, 1989 letter, with the understanding that the entities re-
ferred to generally as "Gypsum" encompass those entities identified in
the record as having "Gypsum" as part of their names.
Group, Inc., Rochester, New York, its officers,
agents , successors , and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Painters
Local Union No. 150, International Brotherhood of
Painters and Allied Trades; Local Union No. 435,
Laborers International Union of North America,
AFL-CIO; and Local No. 11 of the International
Union of Bricklayers and Allied Craftsmen, AFL-
CIO by furnishing belated, incomplete, and unre-
sponsive answers to their requests for information
concerning possible alter ego double breasting op-
erations by companies with which it may be affili-
ated, referred to as "Gypsum" in the Acting Re-
gional Director's letter of April 12, 1989.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) On request, provide Painters Local Union
No. 150, International Brotherhood of Painters and
Allied Trades; Local- Union No. 435, Laborers
International Union of North America, AFL-CIO;
and Local No. 11 of the International Union of
Bricklayers and Allied Craftsmen, AFL-CIO with
prompt, full, and candid answers to their respective
requests for information, as set forth in the Acting
Regional Director's letter of April 12, 1989, as to
the Respondent's possible alter ego double-breast-
ing relationship with all entities with "Gypsum" as
part of their names, with whom it may be affiliated.
(b) Post at its office and other facilities in Roch-
ester, New York, copies of the attached notice
marked "Appendix."4 Copies of the notice, on
forms provided by the Regional Director for
Region 3, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
4If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
298 NLRB No. 75
ROCHESTER ACOUSTICAL CORP. 559
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Painters
Local Union No. 150, International Brotherhood of
Painters and Allied Trades, Local Union No. 435,
Laborers International Union of North America,
AFL-CIO, and Local No. 11 of the International
Union of Bricklayers and Allied Craftsmen, AFL-
CIO by furnishing belated, incomplete, and unre-
sponsive answers to their requests for information
as to possible alter ego double-breasting operations
by companies with which we may be affiliated
with "Gypsum" as part of their names.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
WE WILL, on request, provide prompt, full, and
candid responses to the requests made by Painters
Local Union No. 150, International Brotherhood of
Painters and Allied Trades, Local Union No. 435,
Laborers International Union of North America,
AFL-CIO, and Local No. 11 of the International
Union of Bricklayers and Allied Craftsmen, AFL-
CIO for information as to our possible alter ego
double-breasting relationship with entities with
"Gypsum" as part of their names with which we
may be affiliated.
ROCHESTER ACOUSTICAL CORP., A
WHOLLY OWNED SUBSIDIARY OF
MADER CONSTRUCTION GROUP, INC.
Michael J Israel, Esq., for the General Counsel.
Jeremy Y. Cohen, Esq. (Flaherty, Cohen, Grande, Ran-
dazzo & Doren, P. C), of Buffalo, New York, for the
Respondent.
James R. La haute, Esq. (Blitman & King), of Syracuse,
New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The
General Counsel issued a complaint in Case 3-CA-13969
on October 9, 1987, alleging that Rochester Acoustical
Corp., a wholly owned subsidiary of Mader Construction
Group, Inc. (Respondent) has violated Section 8(a)(1)
and (5) of the National Labor Relations Act (the Act).
That complaint was withdrawn on March 8, 1988, upon
approval of a settlement agreement . The settlement
agreement in turn was later vacated and the complaint
reissued . That complaint was amended on May 23, 1989,
when it was consolidated with Cases 3-CA-14923 and 3-
CA-14924.
All three cases pertain to the alleged failure and refus-
al of Respondent to furnish information, sought by three
Unions (who represent three separate units of Respond-
ent's employees) as to its relationship with another cor-
poration, Gypsum Systems Inc. (Gypsum).
The hearing was held before me in Rochester, New
York, on July 25, 1989. On the entire record, including
my observation of the demeanor of the witnesses, and
after consideration of the briefs filed by the parties, I
make the following
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATIONS
Respondent is a New York corporation engaged as an
interior finishing contractor in the building and construc-
tion industry. Its operations annually meet the Board's
standard for asserting jurisdiction. The Unions are labor
organizations as defined in Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Painters Local Union No. 150, International Brother-
hood of Painters and Allied Trades (Painters) signed a
collective-bargaining agreement , effective May 1, 1986,
to April 30, 1989, with the Gypsum Dry Wall Contrac-
tors, affiliated with the Building Trades Employers Asso-
ciation of Rochester, New York and Vicinity (BTEA).
Respondent had authorized BTEA to bargain with the
Painters respecting drywall tapers and finishers it em-
ploys in the area covered by that contract. The Painters
have had a collective-bargaining relationship with Re-
spondent for over 20 years.
About 10 years ago, James Biddle was president of
Respondent and Hank Finke was its vice president.
Today, Biddle is president of Mader Construction Group
Inc. (Mader), Respondent's parent corporation. Calvin
King , the Painters' president, testified that he believes
that Finke is now president, of Gypsum. King also testi-
fied that, in 1978, a member of his union requested a
withdrawal card in order to leave Respondent's employ
and to go to work for a newly formed company,
"Gypsum Systems.." King then asked Biddle and Finke if
the new company, was "their company"; they told him
that it was not, that it was a nonunion competitor.
B. The Requests for Information, the Responses, and
Related Evidence
In 1985, the Rochester, New York Building and Con-
struction Trades Council, AFL-CIO (District Council),
comprised of the Painters and 17 other construction
trades unions, undertook investigations into eight compa-
nies it suspected of double-breasting-the operation by a
company, under contract with a union, of a nonunion
company in derogation of the contract. The District
560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Council hired an investigator who obtained affidavits
from two individuals in late 1985. One of the affiants re-
lated that he had been the superintendent on "Gypsum
Systems" jobs for about 3-1/2 years , that he then attend-
ed meetings at Respondent 's office with Biddle , Finke,
George McCadden (Respondent 's president), and Glenn
Smith (Respondent's vice president), that employees
were interchanged between Gypsum Systems and Re-
spondent , and that their operations were integrated in
many areas, specified in the affidavit . The second affiant
related that Finke told her, when she was employed by
"Gypsum Systems" in the years 1982-1985, that Re-
spondent was "the union half," that Mader "was the top
company," and that Gypsum Systems was part of a dual
setup but that nobody outside the company was to know
that fact . She further related incidents as to the integra-
tion of office functions of Respondent and Gypsum.
A Dun and Bradstreet report obtained by the Painters
in mid- 1985 as to Gypsum stated that Finke was its presi-
dent and Biddle its secretary , that it is a real estate hold-
ing concern , and that it is affiliated with (Respondent)
and also with Gypsum Interiors Ltd. Inc . The Dun and
Bradstreet report further stated that the latter company
has the same address as Gypsum and operates as a
drywall contractor and with common ownership.
Dodge Reports, weekly summaries of construction
bids and awards , noted various drywall projects awarded
to "Gypsum SVC Corp." in Rochester and vicinity.
On July 2, 1987 , the Painters wrote the following
letter to "Rochester Acoustical Division, Mader Con-
struction Corporation":
It has come to this Union's attention that Roches-
ter Acoustical Div., Mader Construction Corpora-
tion ("Mader") or its owners or principal (s), have
an ownership interest in or a relationship with
Gypsum Systems , Inc. ("Gypsum") and that compa-
ny may be performing work of the type within the
bargaining unit covered by the collective bargaining
agreement between this Union and Mader.
Depending upon the nature and extent of the re-
lationship between Mader and Gypsum , or their
principals or owners , we believe that Mader may
have been violating its contractual and bargaining
obligations by reason of Gypsum 's non-union oper-
ation. In order for this Union to ensure that Mader
has met and is meeting those obligations , we must
have the following information from you within one
week of the receipt of this letter.
1. Identify the officers of Mader and the officers
of Gypsum, since 1975.
2. Identify the shareholders of Mader and of
Gypsum and the percentage ownership interest of
each shareholder , since 1975.
3. Identify any persons formerly employed by
Mader who have been or are now employed by
Gypsum; and identify the capacity of their employ-
ment for each entity and the time periods of such
employment, as well as the location of such em-
ployment.
4. Set forth when Gypsum was incorporated, and
identify the work [i.e., by job or project, and by be-
ginning and ending dates ] that has been performed
by Gypsum within the jurisdiction that would be
covered by the collective bargaining agreement be-
tween this Local and Mader.
5. Identify for each of the jobs or projects, the
number of emploqyees utilized by Gypsum in the
performance of vvork that is of the same type as
that covered by the collective bargaining agree-
ment. For each employee , identify the length and
hours of employment.
6. Identify any equipment owned by either
Mader and/or Gypsum which is leased to or uti-
lized by the other, and specify the jobs or projects
on which that occurred . Set forth the financial ar-
rangement , if any, governing such use of equipment,
and state whether the arrangement is in writing.
7. Identify jobs which have been bid by Gypsum
and state with respect to each such job whether or
not Mader also bid the job.
8. Identify any work that has been let from one
corporation to the other.
9. Identify any work performed by one of the
companies and which was estimated or bid by the
other.
10. With respect to any job or project performed
by Mader, state whether or not Gypsum performed
work or was present at the same job.
11. State whether any employees or any person-
nel affiliated with either company are sometimes
employed by the other company or receive remu-
neration from the other company , and if so, de-
scribe the circumstances under which that has oc-
curred or occurs.
12. State the business location(s) (by number and
street and by mailing address ) of each company
since the incorporation of Gypsum. Identify the
time period and terms by which either company
provided office space or office services to or for the
other.
13. State the business phone numbers of Mader
and Gypsum since Gypsum's incorporation.
14. Identify amount(s) involved, reason(s) for,
and date(s) of transfer of any funds between Mader
and Gypsum or the principals of the companies.
15. Identify source(s) and amount(s) of the line(s)
of credits past or present , of each company.
16. Identify amount(s) involved , dates , and where
applicable, projects , when either company has oper-
ated its capital with a guarantee of performance by
the other company or its principal(s).
17. Identify each company 's present or past,
building or office materials suppliers.
18. Identify businesses that use or have used the
tools or equipment of each company.
19. Identify those of the following services that
are or have been provided to either company by or
at the other company, setting forth dates and identi-
fy of persons providing such services ; administra-
tive, bookkeeping, clerical , detailing , drafting, engi-
neering, estimating , bidding, managerial , negotiating
ROCHESTER ACOUSTICAL CORP.
jobs, patternmaking, sketching, and any other serv-
ices (describe).
20. Identify customers referred by either compa-
ny or its principal(s) to the other.
21. Identify any customers past or present of
either company who have been or are new custom-
ers of the other company . In each such case, state
the calendar period and dollar volume of business
performed for the customer.
22. For each company, identify the Directors,
since 1975.
If you are unable to provide all the information
requested , please supply the information you have
and state under oath that you cannot furnish the
rest.
On September 14, 1987 , the Painters filed the unfair
labor practice charge in Case 3-CA-13969, asserting
therein that Respondent had not bargained in good faith
by having failed to furnish the information sought on
July 2. On September 27, 1987, Respondent's counsel
wrote the Painters in reply. He related that "Gypsum
Services Inc." has never performed work that is covered
by the Painters ' contract; that "Rochester International
Corp" is not a division of Mader but that it and also
Gypsum Services Inc. are wholly owned subsidiaries of
Mader ; that there has never been any interchange of em-
ployees between , those companies; and that the compa-
nies do not have common officers.
On October 1, 1987, Respondent's counsel wrote the
Painters to state that his reference in his prior letter to
"Gypsum Services Inc." was inadvertent and that he in-
tended to refer to "Gypsum Systems Inc." He further
stated that , except for minor changes he noted , the infor-
mation he sent the Painters on September 29 was cor-
rect.
On October 14, 1987, Respondent's counsel wrote the
Board 's Regional Office to state shat he received no cor-
respondence from the Painters after the charge was filed.
He reiterated his statement that Respondent has no busi-
ness relationship with Gypsum.
On October 30, 1987„ a complaint and notice of hear-
ing was issued in Case 3-CA-13969 alleging that Re-
spondent violated Section 8(a)(1) and (5) of the Act by
having furnished belated , incomplete, and unresponsive
communications to the Painters ' requests of July 2.
On February 29, 1988, Respondent's counsel wrote the
Painters . He stated that he was making "a more detailed
response to (its) July 2, 1987 inquiries." Therein, he
stated that Respondent had no knowledge as to Gyp-
sum's ownership, its directors, or its jobs other than one
completed in 1984 or as to its suppliers . He stated fur-
ther , in essence , that there was no employee or equip-
ment interchange and no common customers . He fur-
nished data as to Respondent's officers, directors, stock-
holders, and suppliers.
As noted above, the complaint in Case 3-CA-13969
was withdrawn on March 8 , 1988, upon approval of a
settlement agreement in which Respondent stated that it
will, upon request , furnish the Painters with the informa-
tion sought in its July 2, 1987 letter.
561
There were no further developments until October 10,
1988, when the two other Charging Parties in these
cases-Local Union No. 435, Laborers International
Union of North America, AFL-CIO (Laborers) and
Local No. 11 of the International Union of Bricklayers
and Allied Craftsmen, AFL-CIO (Bricklayers)-wrote
Respondent separate letters which were virtually identi-
cal in substance to the July 2, 1987 letter sent Respond-
ent by the Painters , described above. The Laborers and
the Bricklayers have separate collective -bargaining
agreements with Respondent covering their respective
employee units.
On December 6, 1988 , Respondent's counsel wrote let-
ters to the Laborers and the Bricklayers. With minor
variations , those letters were identical to the letter Re-
spondent's counsel sent to the Painters on February 29,
1988 , the substance of which has been summarized
above.
On February 2, 1988 , Respondent 's counsel wrote to
the Board 's Regional Office in response to an inquiry by
a Board field examiner . Essentially , he reviewed the ear-
lier correspondence, noted that the Painters had not
made any supplemental request since the settlement
agreement in Case 3-CA-13969 had been approved 11
months previously and he advised that Respondent
would answer any written requests, either from the Re-
gional Office or from the Painters , within 10 business
days of receipt.
On February 14, 1989 , Respondent's counsel wrote the
Regional Office to furnish some data as to Mader, i.e.,
that James Biddle is Mader 's president and a shareholder;
and that Respondent does not know the other officers,
directors, or shareholders of Mader.
The Laborers and the Bricklayers filed unfair labor
practice charges on April 10, 1989 , in Cases 3-CA-14923
and 3-CA-14924 respectively against Rochester Acousti-
cal Corp . asserting that Respondent had unlawfully re-
fused to furnish relevant contract data since October 17,
1988.
On April 12, 1989, the Acting Regional Director
wrote Respondent regarding Case 3-CA-13969 to state
that compliance with the settlement agreement therein
has not been achieved . His letter stated that Respondent
has not provided information as to the following points
(the numbers below refer to the numbers in the Painters'
original request dated July 2, 1987 , set out above):
1. Officers of Rochester Acoustical Corp.
("Rochester Acoustical") since 1975; all the officers
of Gypsum Systems, Inc. ("Gypsum ") at any time.
2. Shareholders of Rochester Acoustical since
1975; all the shareholders of Gypsum at any time.
4. The date of Gypsum's incorporation, the dates
and duration of jobs performed by Gypsum within
Local 150's jurisdiction.
7. A statement describing jobs which had been
bid by Gypsum and whether any of such jobs were
also bid by Rochester Acoustical.
13. The telephone numbers of each company
since 1975.
562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14. Amounts, reasons and dates of transfer of
funds between Rochester- Acoustical and Gypsum
or the principals of the companies.
15. Information concerning a Gypsum line of
credit.
16. The identity of the suppliers of Gypsum.
22. Information as to the directors of Gypsum.
The record before me contains no evidence of any
reply to that letter.
On May 3, 1989, as noted above, the complaint in Case
3-CA-13969 was reissued and the settlement agreement
therein vacated. Also as noted above, that case was con-
solidated by order dated May 23, 1989, with Cases 3-
CA-14923 and 3-CA-14924 and an amended complaint
issued with that order.
Calvin King, who is president of the Painters and also
president of the District Council, testified before me that
the Painters had requested the information of Respond-
ent as to its relationship with "Gypsum Systems, Inc."
based upon data obtained by an investigator hired by the
District Council, as recounted above.' During his cross-
examination, he was asked why the Painters asked about
only "Gypsum Systems" when the Dun and Bradstreet
reports it had disclosed that Gypsum Systems Inc. was a
real estate holding company. King acknowledged that
the Painters did not request Respondent to supply infor-
mation as to "Gypsum Interiors Limited Inc." although
the Dun & Bradstreet reports identified that company as
a drywall contractor. King further testified that compa-
nies named in the Dodge reports and elsewhere as
"Gypsum Systems," "Gypsum Interiors Limited Inc.,"
"Gypsum SVC Corp.," "Gypsum Systems Inter," and
"Gypsum Interiors Ltd. Inc.," were all, in his view, one
company and that he referred to it frequently as
"Gypsum."
The evidence before me discloses that Respondent's
president, George McCadden , reports to James Biddle,
the president of Mader, the parent company2 and that:
he attends meetings of "the` various companies in the
Mader Construction Group." McCadden testified further
that Gypsum Services Inc. is engaged as a supplier of
materials to drywall contractors and that Respondent is
one of its customers.
McCadden testified that he has not sought from Biddle
or any other Mader official any data as to the ownership
' King also testified as to a conversation he had with Respondent's
president, George McCadden, in May 1989. According to King, McCad-
den had asked hun then if the Painters would drop its unfair labor prac-
tice charge if he took over "Gypsum Systems." McCadden testified that
he told Kmg that he "would like to have the case dropped" but that he
made no reference to "Gypsum Systems, Gypsum Interiors or Gypsum
Systems, Limited." It is unnecessary to make a credibility resolution.
Rule 408 of the Federal Rules of Evidence bars evidence of a settlement
effort when offered as an implied admission against interest. See Barney's
Club, 288 NLRB 803 (1988). Further, King's testimony as to the conver-
sation adds little to the General Counsel's case, the credibility issue is an
immaterial one. Were it necessary to resolve it, I would credit King's ac-
count as, overall, he impressed me with his candor
2 As noted above, Respondent's counsel wrote the Painters on Septem-
ber 27 and October 1, 1987, to state that Respondent and Gypsum are
wholly owned subsidiaries of Mader and that Respondent is not a divi-
sion of Mader. However, McCadden testified that he has a minority own-
ership interest in Respondent. One of the Dun and Bradstreet reports re-
ferred to above recites that Respondent is a division of Mader.
or operation of any of the companies it owns which has
the word "Gypsum" as part of its name.
C. Analysis
It is fair to assume that, when Respondent signed the
settlement agreement in Case 3-CA-13969, it did so with
the intention of providing the Painters with a candid and
full explication of any double-breasted operations of
Gypsum which may improperly impact on the employee
unit represented by the Painters. Respondent's initial
contention before me hardly comports with that assump-
tion. Respondent argues that, as the Dun and Bradstreet
report the Painters received indicated that Gypsum was
only a real estate holding company, the requested data as
to Gypsum was not presumptively relevant to the
Union's needs. The essence of Respondent's position is
that it and Gypsum are separate entities under the Mader
group and that it has no knowledge as to whether or not
Mader has manipulated it and Gypsum to the detriment
of the unit represented by the Painters, or those repre-
sented respectively by the other two Unions. Such a po-
sition, in my view, is incompatible with good-faith bar-
gaining . In NLRB y Western Wirebound Box Co., 356
F.2d 88, 92 (9th Cir. 1966), the court rejected a conten-
tion that the request there by a union was not precise
enough to warrant a full response . The court stated that
the "duty to substantiate a claim upon request . . . is not
to be defeated because the union fails, to ask for the pre-
cise kind of information . . . or because the company
... is unable to supply other relevant or irrelevent data
specifically requested By the union. The hallmark of
lawfully adequate negotiations . . . is good faith, and
good faith contemplates that both negotiating parties will
do what is reasonably possible to reach agreement. Ne-
gotiations are to be at arms ' length but this does not con-
template erection of artificial barriers and resort to
patent technicalities to obfuscate the proceedings." I find
no merit in that contention.
Respondent asserts next that the data sought by the
Charging Parties were not presumptively relevant to
their roles as parties to their respective contracts with
Respondent . The controlling principles respecting that
assertion have been set out in Bohemia, Inc., 271 NLRB
1128, 1129 (1984):
It is well established that an employer must pro-
vide a union with requested information "if there is
a probability that such data is relevant and will be
of use to the union in fulfilling its statutory duties
and responsibilities as the employees' exclusive bar-
gaining representative." Associated General Contrac-
tors of California, 242 NLRB 891, 893 (1979), enfd.
633 F.2d 766 (9th Cir. 1980); NLRB v. Acme Indus-
trial Co., 385 U.S. 432 (1967). The Board uses a lib-
eral discovery-type standard to determine whether
information is relevant, or potentially relevant, to
require its production. NLRB v. Truitt Mfg. Co., 351
U.S., 149 (1956). Information about terms and condi-
tions of employment of employees actually repre-
sented by a union is presumptively relevant and
necessary and is required to be produced. Ohio
ROCHESTER ACOUSTICAL CORP. 563
Power Co., 216 NLRB 987 (1975), enfd . 531 F.2d
1381 (6th Cir . 1976). Information necessary for
processing grievances under a collective-bargaining
agreement, including that necessary to decide
whether to proceed with a grievance or arbitration,
must be provided as it falls within the ambit of the
parties' duty to bargain . NLRB v Acme Industrial,
supra; Bickerstaff Clay Products, 266 NLRB 983
(1983).
However, when a union 's request for information
concerns data about employees or operations other
than those represented by the union , or data on fi-
nancial , sales , and other information , there is no
presumption that the information is necessary and
relevant to the union 's representation of employees.
Rather, the union is under the burden to establish
the relevance of such information . Ohio Power,
supra.
To meet its burden of demonstrating reasonable or
probable relevance as to a request for information of an-
other company, the General Counsel must show that the
union has a reasonable objective basis to believe that a
company may be engaging in double-breasting. See M.
Scher & Son , 286 NLRB 688 (1987). I find that the Paint-
ers, Laborers , and Bricklayers had a reasonable, objec-
tive basis in view of the investigation undertaken at the
instance of the District Council , as summarized above.
The detailed statements of the affiants taken during that
investigation , the Dodge reports, and the Dun and Brad-
street reports provide a clear objective and reasonable
basis to-support the information requests.
Once it is determined that the requested information is
relevant to a union to enable it to carry out its obliga-
tions as bargaining representative , the employer has the
obligation "to provide relevant and material information
. .. to make a reasonable effort to secure the requested
information and, if unavailable, explain or document the
reasons for the asserted unavailability" Goodyear Atomic
Corp., 266 NLRB 890, 896 (1983).
Respondent failed to make full disclosure . It made no
relevant inquiries of Biddle, the president of Respond-
ent's corporate parent , which also controls apparently all
the "Gypsum" subsidiaries. Respondent did not even dis-
close the limited extent of, or perhaps lack of, its efforts
to obtain the requested information. It certainly did not
claim that it tried but failed to obtain the data or that
such an effort was unduly burdensome, I find that Re-
spondent has, as alleged in the amended complaint, fur-
nished the three Unions in this case with "belated, in-
complete and unresponsive" answers to their requests for
relevant information. See Hospital Employees District
1199E (Johns Hopkins), 273 NLRB 319, 320 (1984).
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Painters, Laborers, and Bricklayers are each a
labor Organization as defined in Section 2(5) of the Act.
3. By furnishing these labor organizations with belated,
incomplete, and unresponsive answers to their respective
requests for relevant information, Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act.
4. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Respondent, having failed to respond to relevant re-
quests for information, shall remedy those deficiencies by
providing responses to the respective Unions to the ques-
tions propounded to it by the Regional Director, in his
letter of April 12, 1989, whereby he had endeavored to
secure full compliance by Respondent with the settle-
ment agreement , thereafter vacated. To ensure against
possible subsequent ambiguities, Respondent shall, upon
request by any or all of the labor organizations in this
case, provide any additional information pertinent to the
issue of double-breasting. To that end, I have included
appropriate provisions in the order below.
[Recommended Order omitted from publication.]