Cascade General, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 12, 2009

36-CA-010434 (N.L.R.B. Aug. 12, 2009)

JD-36-09
Portland, OR
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CASCADE GENERAL, INC. Case No. 36-CA-10434
and
METAL TRADES COUNCIL OF PORTLAND
AND VICINITY, affiliated with METAL TRADES
DEPARTMENT, AFL-CIO
Lisa J. Dunn, Esq., for the General Counsel.
Jacqueline M. Damm, Esq., (Bullard Smith Jernstedt Wilson),
Portland, Oregon, for the Respondent.
Michael Tedesco and Sarah K. Drescher, Esqs.,
Lake Oswego, Oregon, for the Charging Party.
DECISION
Statement of the Case
ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Portland,
Oregon, on June 25, 2009. The charge was filed March 12, 2009 and the complaint was issued
on May 6, 2009.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Respondent and the Charging Party, I
make the following
Findings of Fact
I. Jurisdiction
Respondent, Cascade General, Inc., a corporation, is engaged in the business of ship
repair at its Portland, Oregon facility. In conducting its business at this facility, Respondent
purchases and receives goods valued in excess of $50,000 from outside the State of Oregon.
Respondent admits and I find that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union, the Metal Trades Council of Portland
and Vicinity (MTC), is a labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
Cascade General and the Union, the MTC, have had a collective bargaining relationship
since 1990. The MTC represents all production, maintenance and repair employees of
Cascade General at its Portland, Oregon ship repair facility. The current collective bargaining
agreement between Cascade General and the MTC runs from July 16, 2008 through June 30,
2011. This agreement applies to all work of Cascade General in connection with the
construction, conversion, repair or scrapping of any vessel on the Pacific Coast. On February 4,
2009, the Union filed a grievance alleging that bargaining unit work was being performed by
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employees who are not covered by the current collective bargaining agreement. The Union
followed up its grievance by making the written information request which is at issue in this case
on February 13, 2009. Respondent has refused to provide the information requested to the
MTC.
The General Counsel alleges that Respondent violated Section 8(a)(5) and (1) in
refusing to provide the information requested by the Union in its request of February 13.
On that date, Gary L. Moore, Jr., a Business Representative of Laborers’ International Local
Union 296, who is also the Executive Secretary-Treasurer of the Metal Trades Council of
Portland and Vicinity sent a letter to Nina Bisson, the Respondent’s Employee Relations
Manager, requesting, on behalf of the MTC:
1) the business titles, employers, work address, telephone numbers and business cards
of 13 individuals who the Union believed to be working for, or associated with six companies
that the Union believes to be closely related: Respondent Cascade General, Vigor Industrial,
Vigor Marine, Shipyard Commerce Center, U.S. Barge and Specialty Finishes;1
2) a list of managers, supervisors and/or non-unit employees working for any of these
six companies in the Portland, Oregon area;
3) the location of the payroll department and human resources departments for the six
companies in the Portland area;
4) all publicly filed documents relating to the association, combination and cooperation
between the six companies as related to their Portland operations.
Several of the individuals named in the first request: Vicki Taylor, Carol Chislett, Mike
Trautman, Nina Bisson and Ray Herndon, are human resources/labor relations officials who
have worked for Cascade General and/or one of the other five companies. Some of these
officials have worked for Cascade General and also for one or more of the related companies.
Another of the individuals named, Frank Foti, has an ownership interest in all five and in
Cascade General.
Employees of at least two of companies named in the Union’s February 13 letter, Vigor
Marine and U.S. Barge, are represented by Boilermakers Local 104. Boilermakers Local 104 is
a member of the Metal Trades Council of Portland and Vicinity and Lance Hickey, a business
representative of Local 104, is a member of the MTC’s Executive Board.
There appears to be a jurisdictional dispute between Boilermakers Local 104, on the one
hand, and the MTC and/or some of the other craft unions which belong to the MTC, on the
other. In December 2008, the MTC filed a petition to represent employees of Vigor Marine, who
were then represented by Local 104. The Boilermakers Union filed a Complaint with the AFL-
CIO against its Metal Trades Department pursuant to Article 20 of the AFL-CIO Constitution.
The MTC filed a reciprocal complaint against the Boilermakers. After a meeting in Washington,
D.C., involving the MTC and the Boilermakers International, both Article 20 complaints were
withdrawn. The MTC’s petition to represent employees of Vigor Marine was also withdraw in
March 2009.

1 Respondent, at page 2 of its brief, states that Cascade General, Vigor Marine, Shipyard
Commerce Center, U.S. Barge and Specialty Finishes are all subsidiaries of Vigor Industrial,
LLC.
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The MTC reiterated its February 13 information requests on February 23, and March 6.
On March 17, Moore revised his request to include managers, supervisors and non unit
employees working within 300 square miles of the Portland metropolitan area who are on the
payroll of the six companies. He also limited his request for publicly filed documents to those
documents filed with the Secretaries of State for Washington and Oregon.
Moore also informed Respondent on March 17, that the Union was seeking the
information in relation to the grievance it had filed asserting that Cascade General was
operating in concert with the other five companies as a single employer (owner) to circumvent
the jurisdiction of the MTC and to violate Cascade’s collective bargaining agreement with the
MTC.
Respondent has refused to process the Union’s grievance or to provide it with the
information it has requested. Respondent contends that the Council, as opposed to the ten
individual unions that are affiliated with the MTC, has no standing either to file a grievance
under its collective bargaining agreement with Cascade General or to request information from
Cascade General related to such a grievance. It also contends that through inaction since
1990, the MTC has waived any rights it may have had to request such information.
On August 7, 1990, the Board certified the following labor organization as the authorized
bargaining representative for employees of Cascade General’s production and maintenance
facility in Portland, Oregon: “Metal Trades Council of Portland and Vicinity and Pacific Coast
Metal Trades District Council, AFL-CIO.” The parties’ initial collective bargaining agreement in
1990 expanded the unit to include repair employees. Article 2 of the current collective
bargaining contract between Cascade General and the Union describes the parties to the
agreement as follows:
This agreement is made and entered into by and between Cascade General
Incorporated (hereinafter referred to as the “Employer”), and the Pacific Coast Metal
Trades District Council, AFL-CIO, on behalf of itself, the Metal Trades Council of
Portland and Vicinity, the affiliated Local Unions, the International Unions listed below
and the Metal Trades Department, AFL-CIO (hereinafter the “Unions”).
Prior agreements had the same or similar language in describing the parties.
When a union requests information relating to an alleged single-employer or alter-ego
relationship, the union bears the burden of establishing the relevance of the requested
information. Reiss Viking, 312 NLRB 622, 625 (1993); Bentley-Jost Electric Corp., 283 NLRB
564, 568 (1987), citing Walter N. Yoder & Sons, 754 F.2d 531, 536 (4th Cir. 1985). A union
cannot meet its burden based on a mere suspicion that an alter-ego or single-employer
relationship exists; it must have an objective, factual basis for believing that the relationship
exists. See M. Scher & Son, Inc., 286 NLRB 688, 691 (1987). Under current Board law,
however, the union is not obligated to disclose those facts to the employer at the time of the
information request. Baldwin Shop ‘N Save, 314 NLRB 114, 121 (1994); Corson & Gruman, 278
NLRB 329, 333–334 fn. 3 (1986). Rather, it is sufficient that the General Counsel demonstrate
at the hearing that the union had, at the relevant time, a reasonable belief that such a
relationship exists.
Hearsay Nature of the General Counsel’s evidence
The Union’s evidence that Cascade General was operating as a single employer with
other companies is pure hearsay. The General Counsel’s only witness, Gary Moore, testified,
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over the objection of Respondent’s counsel, about reports he had received from shop stewards
that employees of other companies, directed by Cascade General supervisors, were performing
work that should have been performed by Cascade General employees . Moore did not have
any first hand knowledge to support the Union’s request for information. However, second-hand
testimony regarding what other union members told Moore, appears under Board precedent to
be a sufficient basis to establish its entitlement to the information requested, Leonard B.
Herbert, Jr., 259 NLRB 881 (1981); National Cleaning Company, 265 NLRB 1352 (1982);
Corson & Gruman 278 NLRB 329, 333-34 (1986); Baldwin Shop ‘N Save, 314 NLRB 114, 121
(1994).
Relevant provisions of the current collective bargaining agreement:
Provisions of the current collective bargaining agreement that are relevant to
Respondent’s arguments are as follows:
Article 17: Recognition, Union Security, Business Representatives and Stewards.
17.1 Recognition: The Employer recognizes the Unions as set forth in Article 2
(“Parties”) and signatory hereto as the sole Collective Bargaining Agents for all of its Employees
engaged in work covered by Article 1 (“Scope”) of the Agreement.
17.3 Shop Stewards: Each Union may designate one (1) Chief Steward on each shift
who will be granted Super Seniority.
…The Metal Trades Council shall advise the Employer of the names of their appointed
Stewards.
17.4 Business Representatives: The business Representatives of the various Unions
shall have access to the shipyard and shipyard shops by carrying the proper credentials and
access pass…
Article 19. Grievance and Arbitration
19.1 the Grievance Procedure shall be as follows:
STEP 1. Either the Shop Steward or the Union Business Representative has five (5)
working days to bring the problem to the attention of the employer representative…The Union
Business Representative has twelve (12) working days from the date of the alleged violation to
submit a written grievance over their signature, to the Employer Representative…
STEP 2. The Employer Representative…shall review the grievance within two (2)
working days. The Employer Representative..shall meet with the parties within five (5) working
days after they receive the written grievance to attempt to resolve the problem…
STEP 3. In the event the grievance is not settled as above provided, either party may
submit the grievance within ten (10) working days following the expiration of the time limit
provided in Step 2 to the Metal Trades Council of Portland Executive Board and an Employer
representative…for consideration and possible settlement.
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The “Standing” Issue
I reject Respondent’s argument that it was not required to provide the MTC the
information it requested on the grounds that the MTC did not have “standing” to make such a
request. The MTC has been certified as one of the entities that is the authorized collective
bargaining representative of Respondent’s employees. As such it has a statutory right to
receive information from Respondent that pertains to its responsibilities as the bargaining
representative of Cascade General’s employees.
The Union’s statutory rights are not limited by the provisions of the parties’ collective
bargaining agreement unless they have been clearly, expressly and unmistakably waived,
Bozzuto’s Inc., 275 NLRB 353 (1985); Wilson & Sons Heating, 302 NLRB 802, 804-805 (1991);
Postal Service, 308 NLRB 358, 359 (1992). Silence in the collective bargaining agreement on
the issue as to whether the MTC has a right to request information from Respondent does not
constitute such a clear and unmistakable waiver of the MTC’s statutory rights, King
Broadcasting Co., 324 NLRB 332, 337 (1997).
Moreover, Gary Moore, as a business representative of one of the craft unions that
comprise the MTC, Laborers’ Local 296, has the authority to file a written grievance. It makes
no difference that Moore made his February 13, 2009 request on behalf of the MTC, as
opposed to Laborers’ Local 296. If Moore had made the same request on Laborers’ 296
letterhead and signed the request as Business Representative of Laborers’ 296, there is no
question that Respondent would have to provide information relevant to his duties under the
collective bargaining agreement as a representative of Local 296.
Certainly, Moore was under no obligation to explain to Respondent as to why the
information was relevant to his duties on behalf of Local 296, as opposed to his duties on behalf
of all other unions that are members of the MTC. To the extent that Respondent’s position is
that it was not obligated to provide the MTC information because Moore’s request was on behalf
of the MTC, as opposed to Local 296, it is an argument that places form over substance.
The Waiver Issue
The Board and courts have held that a union may contractually relinquish a statutory
bargaining right if the relinquishment is expressed in clear and unmistakable terms. Metropolitan
Edison Co. v. NLRB, 460 U.S. 693 (1983); American Broadcasting Co., 290 NLRB 86 (1988);
United Technologies Corp., 274 NLRB at 507. Under Board law, a waiver “can occur in one of
three ways: by express provision in the collective bargaining agreement, by the conduct of the
parties (including past practices, bargaining history, and action or inaction), or by a combination
of the two. The language of a collective bargaining agreement will effectuate a waiver only if it is
‘clear and unmistakable’ in waiving the statutory right.” Chesapeake & Potomac Telephone
Co. v. NLRB, 687 F.2d 633, 636 (2d Cir. 1982), cited many times by the Board.
An examination of the parties’ bargaining history does not reveal a clear and
unmistakable waiver of the MTC’s statutory right to receive relevant information from
Respondent. As the Board concluded in King Broadcasting Co., 324 NLRB 332 at 337 (1997):
“waiver of [statutory] rights may be evidenced by bargaining history, but only if the matter
at issue has been fully discussed and consciously explored during negotiations and the
union has consciously yielded or clearly and unmistakably yielded its interest in the
matter.” Ohio Power Co., 317 NLRB 135, 136 (1995). Accord: Reece Corp., 294 NLRB
448, 451 (1989).
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There is no evidence that the MTC consciously waived its right to obtain information
from Respondent, either generally or with regard to the issue of nonunit employees performing
bargaining unit work.
Moreover, on two occasions, once before February 2009, and once afterwards, Moore
has made information requests on behalf of the MTC. Respondent has provided some of the
information that Moore requested on these occasions. I thus reject Respondent’s argument that
it was entitled to refuse to provide the information requested by Moore on the grounds that the
MTC had waived this right.
I also reject Respondent’s argument that the MTC waived its right to request information
from Respondent during collective bargaining negotiations. Respondent proposed that the MTC
designate a single business representative to file grievances on behalf of the MTC, rather than
allowing any one of the business representatives of the member unions to file a grievance. The
fact that the member unions were unwilling to cede their authority to act on behalf of their crafts
does not logically lead to an inference that the MTC was ceding its authority to act on behalf of
the unions that comprise the MTC.
Respondent’s “improper purpose” argument
Respondent argues that it is entitled to ignore the MTC’s information request on the
grounds that the request was made for an improper purpose, i.e., to assist in organizing the
employees of companies related to Cascade General, including Vigor Marine, whose
employees are currently represented by the Boilermakers. The argument asks this judge to
speculate on the motives for the MTC’s request and draw inferences that are not supported by
the record.
So far as the record shows, the MTC suspects that Respondent is using employees of
other related companies to do work that should be performed by Cascade General’s employees
pursuant to the collective bargaining agreement between Cascade General and the MTC.
Thus, it may or may not be the case that Vigor Marine employees, represented by the
Boilermakers, are performing work that by contract should be performed by employees of
Cascade General, including those who are members of craft unions other than the
Boilermakers.
The MTC has established that some, but not all of the information it requested is relevant to its
assertion that Respondent is allowing nonunit employees to perform bargaining unit work.
The MTC contends that several different classifications of information are relevant to its
rights under the collective bargaining agreement and its suspicion that unit work is being
performed by nonunit employees. I find, however, that it has established the relevance of only
some of the information it requested.
I find that the MTC has not shown how its request for the telephone numbers and
business cards of the 13 individuals named in paragraph 1 of its February 13, 2009 letter is
relevant to its rights under the collective bargaining agreement and thus find that Respondent
did not violate Section 8(a)(5) in refusing to provide this information.
On the other hand, the business titles, employers and work addresses of these
individuals may be relevant in establishing whether or not any of the companies are single
employers of unit and/or nonunit employees. Single employer status is established where there
is an interrelationship of operations, common management, centralized control of labor relations
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and common ownership or financial control. Radio & Television Broadcast Technicians Local
1264 v. Broadcast Services of Mobile, 380 U.S. 255 (1965); Techno Contracting Corp., 333
NLRB No. 5 (2001); Bultman Enterprises 332 NLRB No. 31 (2000); Francis Building Corp., 327
NLRB 485 (1999). Joint control of labor relations is a critical factor in establishing single
employer status. Soule Glass & Glazing Co., 264 NLRB 792 (1979); Alabama Metal Products,
280 NLRB 1090 (1986).
I find that the MTC has not made the required showing with regard the list of all
managers, supervisors and/or non unit employees of the six named companies as requested in
paragraph 2 of Moore’s February 13 request. Thus, Respondent did not violate Section 8(a)(5)
in failing to provide all of this information.
However, I find that the MTC has established the relevance of a list all employees of the
six companies who have performed bargaining unit work, i.e., all work in connection with the
construction, conversion, repair or scrapping of any vessel within 300 square miles of the
Portland metropolitan area during the period beginning six months prior to the information
request through the present. Thus, I find that Respondent has violated the Act in refusing to
provide this subset of the information requested by the MTC.
I also conclude that Respondent violated the Act in refusing to provide the location of the
payroll and human resource departments for the six companies, as requested in paragraph 3 of
the February 13 letter. This information may also be relevant to establishing whether or not one
or all of the six companies has an interrelationship of operations, common management,
centralized control of labor relations and common ownership or financial control with any one of
the other six.
Finally, I find that the MTC has established the relevance of all documents filed by the
six named companies with the Oregon Secretary of State and/or the Washington Secretary of
State that relate to the association, combination and cooperation between them in the Portland
area, as requested in paragraph 4, as modified in Moore’s March 17 letter.
Conclusion of Law
Respondent, Cascade General, is violating Section 8(a)(5) in refusing the provide the
MTC the following information which the MTC has requested:
1. A list all employees of the six companies named in the Union’s February 13, 2009
letter, who have performed MTC bargaining unit work, i.e., all work in connection with the
construction, conversion, repair or scrapping of any vessel within 300 square miles of the
Portland metropolitan area during the period beginning six months prior to the information
request through the present;
2. The business titles, employers and work addresses of the thirteen individuals listed in
the MTC’s February 13, 2009 information request;
3. The location of the payroll and human resource departments for the six companies;
4. All documents filed by these six companies that have been filed with the Oregon
Secretary of State and/or the Washington Secretary of State that relate to the association,
combination and cooperation between these companies in the Portland area.
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Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended2
ORDER
The Respondent, Cascade General, Inc., Portland, Oregon, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing and failing to provide to the Union, the Metal Trades Council of
Portland and Vicinity, information, requested by the Union, that is relevant to
its statutory duties and responsibilities, including: the business titles,
employers and work addresses of the thirteen individuals listed in the MTC’s
February 13, 2009 information request; a list of employees of other
employers who have performed work that is bargaining unit work under the
terms of the collective bargaining agreement between Cascade General and
the Metal Trades Council of Portland and Vicinity during the period beginning
six months prior to the information request through the present; the location
of the payroll and human resource departments for the six companies named
in the Union’s information request; and all documents filed by these six
companies that have been filed with the Oregon Secretary of State and/or
the Washington Secretary of State that relate to the association, combination
and cooperation between these companies in the Portland area.
(b) In any like or related manner interfering with, restraining or coercing
employees in the exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Provide to the Union those documents with respect to which I have found
that the Respondent violated the Act in failing to provide previously;
(b) Within 14 days after service by the Region, post at its Portland, Oregon
facility, copies of the attached notice marked “Appendix.”3 Copies of the
notice, on forms provided by NLRB subregion 36, after being signed by the

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 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 National 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.”
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Respondent’s authorized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous places including all
places where notices to employees 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. In the event that, during
the pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings, the Respondent
shall duplicate 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 February 13, 2009.
(c) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated, Washington, D.C., August 12, 2009.
____________________
Arthur J. Amchan
Administrative Law Judge
JD-36-09
Portland, OR
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 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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse or fail to provide the Union, the Metal Trades Council of Portland and
Vicinity, with information it has requested, which is relevant to its rights and obligations as the
collective bargaining representative of our employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL provide to the Union documents previously requested that pertain to its claim that
employees of other companies have performed work that is bargaining unit work under the
terms of the collective bargaining agreement between the Metal Trades Council of Portland and
Vicinity and Cascade General, Inc. These documents include: a list of the business titles,
employers and work addresses of the thirteen individuals listed in the MTC’s February 13, 2009
information request; a list of employees of other employers who have performed work that is
bargaining unit work under the terms of the collective bargaining agreement between Cascade
General and the Metal Trades Council of Portland and Vicinity during the period beginning six
months prior to the information request through the present; the location of the payroll and
human resource departments for the six companies named in the MTC’s information request;
and all documents filed by these six companies that have been filed with the Oregon Secretary
JD-36-09
Portland, OR
of State and/or the Washington Secretary of State that relate to the association, combination
and cooperation between these companies in the Portland area.
CASCADE GENERAL, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
601 SW 2nd Avenue, Suite 1910
Portland, Oregon 97204-3170
Hours 8 a.m.-4:30 p.m.
503-326-3085.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 503-326-3289.