G.E. Maier Company

National Labor Relations Board - Administrative Judge Opinions

Aug 28, 2006

09-CA-042602 (N.L.R.B. Aug. 28, 2006)

JD-63-06
Cincinnati, OH

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

G.E. MAIER COMPANY Case No. 9-CA-42602

and

OHIO AND VICINITY REGIONAL COUNCIL OF
CARPENTERS, UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA

Patricia Rossner Fry, Esq., for the General Counsel.
Douglas C. Anspach, Jr., Esq. (Taft, Stettinius & Hollister, LLP)
Dayton, Ohio, for Respondent.
Fred Seleman, Esq. (Ulmer & Berne LLP) Cleveland, Ohio
for the Charging Party.

DECISION

Statement of the Case

ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Cincinnati,
Ohio, on June 20, 2006. The Union, the Ohio and Vicinity Regional Council of Carpenters, filed
the charge in this matter on January 26, 2006 and the General Counsel issued a complaint on
April 12, 2006.

The General Counsel alleges that Respondent, G.E. Maier Company, violated Section
8(a)(5) and (1) by failing and refusing to provide the Union with information it requested
regarding the relationship between Respondent and another employer, GEMCO. Respondent
contends that it had no obligation to bargain with the Union, including any obligation to provide
the information requested.

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, a corporation, distributed and installed playground and gymnasium
equipment from its facility in Cincinnati, Ohio, at least through mid-2005. It contends that it is no
longer in business and is no longer subject to the Act. While it is not clear whether this is true,
the record establishes within the calendar year prior to the filing of the charge and Complaint,
Respondent installed gymnasium and playground equipment valued in excess of $50,000 which
was shipped from sources outside the State of Ohio. Therefore, I find that Respondent is
subject to the Board’s jurisdiction and is an employer engaged in commerce within the meaning

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of Section 2(2), (6), and (7) of the Act, American Gypsum Company, 231 NLRB 1291, 1298
(1977); Benchmark Industries, 269 NLRB 1096, 1097-98 (1984); Kranz Heating and Cooling,
328 NLRB 401, 402 (1999).

II. Alleged Unfair Labor Practices

Respondent, G.E. Maier, was founded in 1949. Its sole owner in recent years has been
Thomas G. Maier, Sr., a son of the founder. As late as 2005, Respondent distributed
playground and gymnasium equipment and such items as bleachers and scoreboards and has
regularly installed this equipment at jobsites, many of which were schools.

In about 1999 or 2000, Maier established two other companies, GEMCO (or GEMCO
Products) and GEMCO Installations. These companies are in the same business as
Respondent. GEMCO Installations employs four individuals who install playground and
gymnasium equipment. Maier is sole owner of all three companies. He determines the
employment policies for all three companies. His son, Thomas Maier, Jr., is an officer of
Respondent. His son, Christopher Maier, is an officer of GEMCO.1 The three companies are in
the same building, appear to have the same telephone number, email address and be otherwise
completely intertwined with one another. For example, they have one employee telephone list
and Nancy Absher, Assistant Treasurer of GEMCO, handles the payroll for all three companies.
All three companies use the same accountant who determines how the GEMCO companies
charge Respondent, and vice versa--assuming there are arms length transactions between
these companies. Respondent has apparently done most of its recent work as a subcontractor
to one of the GEMCO companies.

For the last several years, Respondent’s only permanent employee has been James
Fangmeyer, who worked for it for 37 years and has been a member of the Charging Party Union
for many years.2 In 2002, Fangmeyer carried a business card which identified him as a vice-
president for installations of both Respondent and GEMCO. He presented this card to Union
organizer Mark Johnson on a jobsite in Wellston, Ohio in May 2002.

Over the past several years, through 2005, Fangmeyer has been in charge of installing
equipment for Respondent at various sites. On some of these sites, the General Contractor has
been J & H Erectors, a company which is party to a collective bargaining agreement between
the Union and the Tri-State Contractors Association. This agreement covers a number of
counties in southern Ohio, as well as several in Kentucky and West Virginia. While at various
job sites, including those on which J& H Erectors has been the general contractor, Fangmeyer
has been authorized to take whatever steps need to be taken to complete the work, including
obtaining equipment at Respondent’s expense and obtaining additional labor when he needed
it.

On several occasions, when he has been on jobsites at which J & H Erectors has been
the general contractor, during the past five years and prior to that, Fangmeyer has called the
1 It is unclear in this record how GEMCO Products and GEMCO Installations are
differentiated, if in fact, there is any distinction.
2 The General Counsel alleged in its Complaint that Fangmeyer was a supervisor within the
meaning of section 2(11) of the Act and an agent within the meaning of Section 2(13).
Respondent denied that Fangmeyer was a supervisor or an agent. The General Counsel has
not established that Fangmeyer was a supervisor, but if it had been successful it would also
have established that Respondent had no permanent employees.

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Charging Party Union to obtain additional labor.3 Thomas Maier, Sr., was aware that
Fangmeyer and other officials of Respondent had done so, at least on some occasions, such as
on a jobsite at Youngstown State University in 1997. On several occasions Fangmeyer has
signed documents recognizing the Union as the exclusive bargaining representative of
Respondent’s employees and promising to abide by the terms of various collective bargaining
agreements.

One of these is the “Acceptance of Agreements,” GC Exh. 12, which Fangmeyer signed
on behalf of Respondent on May 8, 2002, on a J & H Erectors jobsite in Wellston, Ohio,
south/southeast of Columbus. Respondent was installing basketball equipment in the Wellston
school gymnasium. Pursuant to this document, Respondent recognized the Union as the
exclusive bargaining representative for its employees performing work on all present and future
jobs within the jurisdiction of the Union, promised to abide by the collective bargaining
agreement between the Union and the Tri-State Contractors Association and authorized the Tri-
State Contractors Association to be its collective bargaining representative with the Union.

This collective bargaining agreement between the Tri State Contractors Association and
the Union was effective between June 1, 2001 and May 31, 2005 (GC Exh. 18). It provided
that, “it is understood that all signatory employers are bound to future agreements unless a 90
day cancellation notice is submitted to the Union.” The agreement was renewed with minor
changes and is effective from June 1, 2005 through May 31, 2010 (GC Exh. 17).

On the Wellston site, Fangmeyer and Union organizer Mark Johnson agreed that
Respondent could hire a union apprentice, Bill Crabtree. Fangmeyer called Respondent’s office
and obtained workmen’s compensation and unemployment insurance numbers to fill out other
documents for the Union. Fangmeyer discussed with Nancy Absher, at one time the Assistant
Treasurer of Respondent and currently Assistant Treasurer of GEMCO, how to fill out the
Union’s fringe benefit forms for Crabtree. Respondent has paid into the Unions’ fringe benefits
funds for a number of employees, who generally worked for it for several weeks, up through
2005.

Sometime after the Wellston job, in 2002 or 2003, Union Organizer Mark Johnson
encountered a crew installing basketball backboards on a unionized project at the Jackson,
Ohio High School. The foreman identified the crew as working for GEMCO. Johnson called
Chris Maier, Thomas Maier’s son. Chris Maier expressed dissatisfaction over an experience
with Union in the Cleveland area. However, he told Johnson that if the Union would let GEMCO
finished the work they were doing, he would send Fangmeyer to the site for a later phase and
that Fangmeyer would contact the Union for help. Pursuant to this agreement, the Union
furnished Respondent with the services of one of its apprentices.

Later in this time period, the same thing occurred on a multi-gymnasium project for the
Waverly, Ohio schools. After a telephone conversation between Chris Maier and Johnson, non-
union employees were allowed to complete work on one gym and the Union supplied
apprentices for the rest of the project.

Two Union apprentices also worked for Respondent on jobs in Portsmouth, Ohio in
2005.4 Respondent paid into the Union’s fringe benefit funds on behalf of these employees. At
Continued
3 Two Union apprentices worked for Respondent in Portsmouth, Ohio sometime after March
22, 2005.
4 These jobs, on which J & H Erectors was the general contractor, were worth over a million

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_________________________
some point Chris Maier told Johnson that while Respondent would operate as an “open shop” in
other areas, it would work with Union labor in South Central Ohio.

On December 28, 2005, Thomas Maier sent a letter to the Union notifying it of
Respondent’s intent to terminate its relationship with the Union, GC Exh. 10. The Union
responded by sending Maier a letter on January 5, 2006, requesting detailed information about
Respondent’s relationship with GEMCO. Respondent has refused to provide such information
which led the Union to file the charge which gave rise to the General Counsel’s complaint in this
matter.

Analysis

Respondent did not timely terminate its relationship with the Union in December 2005.

Respondent, by signing the “Acceptance of Agreements” on May 8, 2002, and similar
documents, did not indicate an unequivocal intent to be bound by multiemployer bargaining.
Therefore, it could have terminated its relationship with the Union had it done so within the time
frame provided in the parties’ collective bargaining agreement, Schaetzel Trucking, Inc., 250
NLRB 321, 323 (1980); Gordon Electric Company, 123 NLRB 862, 863 (1959).

However, the Collective Bargaining Agreement that expired on May 31, 2005 provided
that all signatory employers would be bound to future agreements unless a 90 day written
cancellation notice was submitted to the Union.5 It is undisputed that Respondent did not
submit a written cancellation notice to the Union 90 days prior to the expiration of the
agreement.6 The Board’s holding in Phoenix Air Conditioning, 231 NLRB 341 (1977) mandates
the conclusion that unless Respondent gave such notice within 120 (or 90) days prior to the
expiration of the Union’s agreement with the Tri State Contractors, it could not terminate its
obligations under the collective bargaining agreement that became effective on June 1, 2005. 7

Respondent is not excused from an obligation to provide the requested information by the fact
that on paper James Fangmeyer was its only permanent employee.

Respondent’s principal defense to Complaint is that the Act precludes the Board from
directing it to bargain collectively with the Union since it only employed one permanent
employee, James Fangmeyer, since about 1999. If Respondent is correct, it cannot be required
to provide the Union the information requested about its relationship with GEMCO in its January
5, 2006 letter.8

dollars.
5 The “Acceptance of Agreements” signed by Fangmeyer appears to be inconsistent with
the collective bargaining agreement. It requires 120 days notice.
6 Sometime in the summer of 2005, Chris Maier informed the Union verbally that
Respondent no longer wanted any relationship with it.
7 Also see Cowboy Scaffolding, 326 NLRB 1050 (1998); Gary’s Electrical Service Co., 326
NLRB 1136, 1140 (1998); City Electric, 288 NLRB 443 (1988)
8 If Respondent is required to provide this information, it should be ordered to answer the
questions insofar as they applied to GEMCO, GEMCO Products and GEMCO Installations.
There is no indication that the Union knew of the existence of the latter two entities and any fair
reading of the inquiry would put Respondent on notice that the Union was asking about any
company related to GEMCO that is controlled by Thomas Maier.

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Black letter law clearly prevents the Board from ordering an employer who employs one
permanent employee to bargain collectively, D & B Masonry, 275 NLRB 1403, 1408 (1985) and
Stack Electric, 290 NLRB 575 (1988). However, the fact that James Fangmeyer was the only
employee of G.E. Maier Company is the not the end of the inquiry in this matter. It is apparent
that one or more of the GEMCO companies may be an alter ego or successor employer to
Respondent. An employer is generally obligated to provide information, such as that requested
by the Union, so that the Board can determine whether it is subject to the Board’s jurisdictional
standards by virtue of its relationship to the other companies, whether it employs unit
employees, and whether or not it has an obligation to bargain with the Union, Jervis B. Webb
Co., 302 NLRB 316, 317 (1991); CEC, Inc., 337 NLRB 516, 519 (2002).

James Fangmeyer had both actual and apparent authority to bind Respondent when he signed
documents committing G.E. Maier to be bound by the collective bargaining agreement between
the Tri-State Contractors Association and the Union.

An individual is an agent of his employer if he is acting with apparent authority on behalf
of the employer when he makes a particular statement of takes a particular action. Apparent
authority results from a manifestation by the principal to a third party that creates a reasonable
belief that the principal has authorized the alleged agent to perform the acts in question. Either
the principal must intend to cause the third person to believe the agent is authorized to act for
him, or the principal should realize that its conduct is likely to create such a belief, Pan-Oston
Co., 336 NLRB 305 (2001).

I conclude from Union Organizer Mark Johnson’s uncontradicted testimony regarding his
conversations with Chris Maier in late 2002 or 2003, that James Fangmeyer had apparent
authority to bind Respondent to the collective bargaining agreement between the Tri-State
Contractors Association and the Union. On the Jackson, Ohio job site, a GEMCO foreman
advised Johnson to call Chris Maier. Chris Maier, who his father contends is an officer of
GEMCO, but apparently not of Respondent, “acknowledged that they…signed … an agreement
for my area.”

Chris Maier also acknowledged and ratified Fangmeyer’s agreements with the Union by
promising to send Fangmeyer to work on additional phases on the project and to hire union
apprentices to work with him. The same thing occurred on the Waverly project. At no time did
Chris Maier contend that he had no authority to speak for Respondent or that Fangmeyer did
not have authority to sign an agreement with the Union.9 Thus, assuming that Fangmeyer did
not have apparent authority to bind Respondent prior to the Union’s conversations with Chris
Maier, he did so afterwards. Moreover, Respondent, by Chris Maier, ratified Fangmeyer’s
conduct, Williams Services, 302 NLRB 492, 504 (1991).

Additionally, Respondent’s December 28, 2005 letter to the Union, seeking to terminate
its relationship, concedes that G.E. Maier had signed an agreement with the Union. In that
letter, there is no contention that James Fangmeyer signed such agreements without authority
to do so. Indeed, I infer from the December 28, 2005 letter and Thomas Maier, Senior’s
awareness that Respondent had on a number of occasions employed apprentices from the
9 Indeed, Chris Maier held several meetings between 2003 and 2005 with Union Business
Representative Mark Galea in which he led the Union to reasonably conclude that he spoke for
Respondent. Respondent’s brief at page 2 concedes that Christopher Maier was at one time an
officer and manager of Respondent.

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Union hall, that Fangmeyer had actual authority to sign the acceptance of agreements with the
Union.

The Union has established the relevance of the requested information to its duties as collective
bargaining representative; Respondent violated Section 8(a)(5) in failing and refusing to provide
the information requested.

Since this record demonstrates that the Union has a reasonable objective basis for
believing that an alter ego, single employer or successorship relationship exists between
Respondent and the GEMCO companies, it is entitled to the information it requested regarding
the relationships between Thomas Maier’s companies on January 5, 2006, Cannelton
Industries, 339 NLRB 996 (2003);10Contract Flooring Systems, Inc., 344 NLRB No. 117 (2005);
Z-Bro, Inc., 300 NLRB 87, 90 (1990). By failing and refusing to provide this information,
Respondent violated Section 8(a)(5) and (1) of the Act.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended11

ORDER

Respondent, G. E. Maier Company, Cincinnati, Ohio, its officers, agents, successors,
and assigns shall:

1. Cease and desist from

(a) Failing and refusing to bargain in good faith with the Ohio and Vicinity
Regional Council of Carpenters, United Brotherhood of Carpenters and Joiners of America as
10 Current Board law does not require the Union to disclose, at the time of its information
request, the facts which cause it to suspect an alter-ego or single employer relationship exists.
The United States Court of Appeals for the Third Circuit, however, generally does require the
Union to disclose sufficient facts to the employer at the time of any information request to
demonstrate its claim of relevance, Hertz Corp. v. N.L.R.B, 105 F. 3d 868 (3d Cir. 1997).
However, the Court made clear that a union does not have to communicate the facts justifying
its request in situations where the employer already is aware of such facts:

In some situations, a union’s reasons for suspecting that discrimination is occurring will
be readily apparent. When it is clear that the employer should have known the reason for
the union’s request for information, a specific communication of the facts underlying the
request may not be necessary. As the ALJ noted in this case, two of Hertz’s managers
testified that credibly that they had no idea why the Union believed that Hertz’s hiring
practices might be discriminatory until they arrived at the administrative hearing…

105 F.3d at 874.

By contrast, Respondent was well aware that GEMCO or GEMCO Installation employees
were performing work claimed by the Union within the Union’s jurisdiction.
11 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.

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the exclusive bargaining agent of its employees in the appropriate bargaining unit by failing and
refusing to furnish the Union with certain requested information which was and is necessary and
relevant to the Union’s performance of its function as the exclusive bargaining agent of the unit
employees.

(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed them in Section 7 of the National Labor
Relations Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Furnish the Union all the information requested in the Union’s letter dated
January 5, 2006.

(b) Within 14 days after service by the Region, post at its Cincinnati, Ohio facility
copies of the attached notice marked “Appendix.”12 Copies of the notice, on forms provided by
the Regional Director for Region 9, after being signed by the 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
January 5, 2006.

(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 28, 2006.

____________________
Arthur J. Amchan
Administrative Law Judge

12 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.”
JD-63-06
Cincinnati, OH
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 fail and refuse to bargain in good faith with the Ohio and Vicinity Regional
Council of Carpenters, United Brotherhood of Carpenters and Joiners of America (Union) as the
exclusive bargaining agent of our employees in the appropriate bargaining unit by failing and
refusing to furnish the Union with certain requested information, which was and is necessary
and relevant to the Union’s performance of its function as the exclusive bargaining agent of our
unit 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 furnish to the Union all the information requested in the Union’s letter, dated January
5, 2006, regarding our relationship to GEMCO and related companies.

G.E. MAIER COMPANY
(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.
550 Main Street, Federal Office Building, Room 3003
Cincinnati, Ohio 45202-3271
Hours: 8:30 a.m. to 5 p.m.
513-684-3686.
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, 513-684-3750.

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