O. Voorhees Painting Co. And O.V. International, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1985

275 N.L.R.B. 779 (N.L.R.B. 1985)

O. VOORHEES PAINTING CO.
0. Voorhees Painting Co. and O.V. International,
Inc. and Painters District Council No. 2 and
Painters District Council No . 2 Pension, Wel-
fare and Vacation Trusts . Case 14-CA-17386.
27 June 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND* DENNIS
On 13 December 1984 Administrative, Law
Judge Phil W. Saunders issued the attached deci-
sion: The Respondents filed exceptions and a sup-
porting brief, and the Charging -Parties filed a brief
in opposition to the Respondents'• exceptions and in
support of the judge's decision.1 1-1
The Board has considered the decision -and the-
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions as modified and to adopt the recom-
mended Order. - . -
The judge found that the Respondents, O. Voor-
hees Painting Co. (Voorhees) and O.V. Internation-
al, Inc. (O.V.) are alter egos, and that they violated
Section. 8(a)(5) and (1) of the Act-by: failing ' to
properly pay unit employees and make fringe bene-
fit contributions pursuant to the collective-bargain-
ing agreement between Voorhees and the Union;
and failing to furnish all relevant information re-
quested by the Union for the purpose of contract
administration. In their exceptions the Respondents
contend that they are not alter egos but at most are
joint employers on the occasional projects where
they have `used the same employees. While we
agree with the 8(a)(5) -violations found by the
judge,2 we disagree that the violations were com-
mitted by the Respondents as alter egos of each
other;_ rather, we find that the Respondents are
jointly responsible for committing and remedying
these violations as joint employers.
The facts bearing on the relationship between
Voorhees and O.V. are fully set forth in the
judge's decision. Briefly, Voorhees is a- painting
contractor located in St. Louis, Missouri. O.V. is a
In its opposition to the Respondents' exceptions , the Charging Parties
contend that 'the exceptions ' should be disregarded because they ' fail to
comply with Sec = 102 46(b) of the Board 's Rules and Regulations Al-
though the Respondents ' exceptions and brief in support thereof do not
conform `in' all particulars with Sec 102 46, they are not so deficient as to
warrant striking Accordingly, we have considered the Respondents' ex-
ceptions in reaching our decision
2 In adopting the judge 's threshold finding that this case is mappropn-
ate for deferral to 'arbitration , we find it unnecessary to rely on the
.judge's statement that the Respondents ' offer to waive the timeliness ob-
jection to the grievance was not sufficient to justify deferral because it
was made for the first time at the hearing Thus , even assuming that the
Respondents ' offer was sufficient to waive the timeliness objection, we
agree with the judge that the nature of the dispute is not well suited for
deferral
779
remodeling contractor, based in St. Louis but oper-
ating on a nationwide basis, :which contracts out
work. to subcontractors performing electrical,
painting, carpentry, etc., work: O.V. does approxi-
mately $1 million in volume of business per year,
of which about $50,000 is done in the St. Louis
area, e.g., through subcontracting with Voorhees.
Oliver, Voorhees owns 70 percent-of Voorhees and
100 percent of -O.V. The two companies have the
same officers and directors, although O.V. has one
additional officer and director. They also occupy
the same - premises in` St . Louis and generally use
the same office clericals and equipment. In the
field, the same employees on several occasions
have worked on-- the same' project for both compa-
nies, under the same supervision and using the
same equipment. Voorhees.is party to a collective-
bargaining agreement with the Union effective 27
January .1983 through 30 ,November 1985. O.V. is
not signatory to any collective-bargaining agree-
ment with the Union..
The judge, applying the alter ego standard set
forth in Fugazy Continental Corp.; 265 NLRB 1301
(1982), enfd. 725 F.2d 1416 (D.C. Cir. 1984),$
found- that .Voorhees and O.V. are alter egos based
on evidence of common ownership and manage-
ment, business purposes, employees, equipment,.
customers, supervision, financial control, related
operations, and central control of labor relations.
We agree that the Fugazy standard is the proper
one to apply,4 but we reach-a different result in ap-
plying.this standard to the . facts of the instant case.
Thus, while there is a. close relationship between
the .two' companies, and the record discloses certain
factors which would support a finding of alter ego
status, we 'find that they do not have. a common
business . purpose and therefore cannot be consid-
ered true alter egos.
In finding that Voorhees and O.V. do not have a
common business purpose, we rely particularly on
the fact that O.V.'s.business- i.e., remodeling-is
broader than that of. Voorhees-i.e., painting. We
further rely on the fact that O.V. operates on a na-
tionwide basis, in contrast to_ Voorhees which is
In Fugazy , the Board stated:. • -
In determining whether [one employer] is the alter ego of [another
employer], we must consider a number of factors , no one of which,
taken alone, is the sine qua, non of alter ego status: Among these fac-
tors. are.. common management and ownership, common business
purpose, nature of operations, and supervision ; 'common premises and
equipment; common customers , i.e., whether the. employers consti-
tute..'the same business in the same market", as well as the nature
and extent of the negotiations and formalities surrounding the trans-
action. We must also consider whether the purpose behind the cre-
ation of the alleged alter ego was legitimate or whether , instead, its
purpose was to evade responsibilities under the Act [Id. at 1301-02.]
4 The Board has applied Fugazy in, among other recent cases, Aspen
Leasing Systems, 271 NLRB 1536 ( 1984), and Advance Electric, 268 NLRB
1001 (1984) _
275 NLRB No. 114
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strictly a- local operation. Moreover,' the evidence
of common supervision, employees,'' customers, and
equipment relates solely to the • St. Louis area; no
evidence was adduced regarding O.V.'s' supervi-
sion, employees; ' : customers, and- equipment any
place else. In these circumstances,, i.e.;-particularly
where one -company operates -nationally and one
company operates locally, we` find'it inappropriate
to find that the two companies should be treated as
one entity: Given this significant difference in busi-
ness purpose, we find that there is 'insufficient evi-
dence to'support a finding that Voorhees and O.V.
are alter egos.
We also note that under Fugazy the Board must
consider the purpose behind the creation of the al
leged alter ego. Here, - however, _ no evidence was
adduced regarding the creation' of either- Voorhees
or•O.V. Therefore- it cannot be determined whether
its purpose was legitimate or unlawful. This, then,
is an additional reason not to find Voorhees and
O.V. to be alter egos.
Our finding that Voorhees and O.V. are not alter
egos does not end the matter, however. The- G_ en-
eral Counsel has' alternatively alleged, - the Re-
spondents concede, and there is ample evidence
that; at least in St. Louis, Voorhees and-O.V. have'
operated as -joint - employers- on those- projects
where 'they have employed' the same` employees.-.
The standard- applied by the Board in 'determining
joint-employer status is "whether two' or. more em-:
ploy'ers• share or --co-determine those matters gov-
erning the essential , terms and conditions of em-
ployment." We' find that this standard is satisfied
in this case based on the evidence that, inter alia,
Voorhees has'hired and supervised employees who
have -worked on the same project for =both Voor-
hees and O.V.; such employees have received pay-
checks from both companies; and the two compa-
nies 'are covered by the same" general liability and
workmen's compensation policies.
The record further indicates `that Voorhees! su-
perintendent, Jackson hired ' the painters for =both
Voorhees and O.V. According to--Jackson' s undis-
puted testimony, when Voorhees had an overtime
job on a Saturday,6 Voorhees would utilize its em-
ployees and - pay them with -an O.V.- paycheck.
Jackson further stated. that sometimes when they
worked -overtime he -made" up. separate timecards,
which he' explained} as "marked a -name out of
I See,-e g, Pacemaker Driver Service, 269-NLRB 971 fn 2 (1984)
6 Under Voorhees' collective-bargaining agreement with the Umon,
double-time pay was required for weekend work.
Voorhees -Painting and put O.V. International on
the timecard,"- and that he did so on instructions
from "all three Voorhees." Jackson also 'passed out
the paychecks when employees worked on week-
ends and , if the employees-. had worked over 40
hours-that week, they would get two paychecks,
one from Voorhees and one from O.V., both at
straight time rates . Jackson further testified that, in
selecting Voorhees employees for the weekend
work, he knew which ones who would work with-
out complaining to the Union about performing
such work for straight time pay.-Finally, Jackson.
admitted that his objective- was to conceal -this
practice. from the Union.
Based on- the foregoing, we- find that Voorhees
and O.V. were joint employers of the unit employ-
ees at the projects in St. Louis where the same em-
ployees worked for and were paid by both compa-
nies . We further find that the concealment -of over-
time hours worked and the straight time payments
made to employees for overtime work for the pur-
pose of avoiding Voorhees' collective-bargaining
agreement with the Union-through the use of the
joint employer arrangement-clearly was unlawful.
Accordingly, we find -that the Respondents proper-
ly are held jointly. liable to remedy all of the
8(a)(5) and (1) violations found herein, and we
affirm the judge's Order -on that basis. -
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and -orders--that the Respondents, O. Voor-
hees Painting Co. and O.V. International, Inc., St.
Louis, Missouri, - their respective officers, agents,
successors, and assigns , shall take the action set
forth in the -Order, except that the attached notice
is substituted for that- of the administrative - law
judge. - - -
MEMBER DENNIS, concurring in part and dissent-
ing in part. ' -
- I agree with my colleagues that O. Voorhees
Painting Co. ,and O.V. International, Inc. violated
Section 8(a)(5) and (1) of the Act by failing to
make certain wage and fringe benefit fund pay-
ments, and- to 'furnish certain relevant information,
under- -Voorhees' collective-bargaining agreement
with -the Union. Unlike the majority, however, I'
find Voorhees and O.V." to be. alter egos for the
reasons the judge fully, set forth in his decision. Ac-
cordingly, I do not. the joint employer issue,-
that my colleagues address. - -
O. VOORHEES PAINTING` CO: 781
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 collectively con-'
cerning rates of pay, wages, hours, and other terms
and conditions of employment with the Union -as
the exclusive representative of the employees in the
appropriate unit set forth in the current collective-
bargaining agreement.
WE WILL NOT refuse to pay the proper wage,
rates and to make payments, to the fringe benefit
funds established in the collective-bargaining 'agree--
ment with the Union. ' - - - '- . -11
WE WILL NOT refuse to furnish to the-Union all
requested information, books; and "records relevant'
and necessary to the performance of its obligations
as the exclusive collective-bargaining representative
of our employees in the appropriate unit. -
WE WILL NOT . in • any like 'or related manner
interfere with, restrain, or-coerce you in the Hexer-
cise of the rights guaranteed ' -you by, Section - •7' of
the Act.
WE WILT make whole the -employees in the ap--
propriate unit by transmitting'-'to the, -UnionT=the
payments owed to the fringe benefit funds •pursuant
to the terms of the collective-bargaining agreement.
WE WILL make whole unit employees- for any'
money or wages withheld from their-'pay'in disre-
gard of the provisions of the collective-bargaining
agreement, with interest. - ' r k
WE WILL furnish to the Union all.bf-'the.informa-
tion and reports heretofore requested.
0. VOORHEES PAINTING Co.`` AND'
O.V. INTERNATIONAL, INC.
DECISION -
STATEMENT -,OF THE CASE
PHIL W. SAUNDERS,; Administrative Judge. ; Based on-
an original. charge fled" on .April 17,'-1984, by, Painters
District Council No. 2 and Painters' District; Council, No,
2 Pension, Welfare and. Vacation Trusts (the Un,ion ,or
the, Charging Party )• a complaint ; dated; May, 31,,-1984,
was issued against O. Voorhees Painting Co. and '0 V:
International; Inc. (Respondent .Voorhees` and O:V.` `and'
collectively Respondents) alleging violations of Section
8(a)(1) and (5) of the National Labor Relations Act. Re-
spondent filed an answer to the complaint "denying it had
engaged in the alleged matter. All the parties filed briefs
in this matter. -
On the record in the case, and' from my observation of
the witnesses and their demeanor, I make, the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
Respondent -Voorhees is a - corporation , organized
under and existing by virtue of the laws of the State of
Missouri and,.at all times material herein, has maintained
its principal office and place of business at 8444 Alabama
in St. Louis,. Missouri. Voorhees is, and has been at all
times material herein, engaged as a painting contractor in
the building and construction industry, and during the
12-month period ending April 30, 1984, in the course and
conduct of its business operations, purchased and,re-
ceived at its St. Louis, Missouri places of business paint
and other, goods and materials, valued in excess of
$50,000 directly from points outside the State of Missou-
n.
Respondent O.V. is also a corporation organized under
and existing by, virtue of the, laws of Missouri, and at all
times material herein,has maintained its principal office
and place of business at 8444 Alabama in St. Louis, Mis-
soun, and has been engaged as a painting and remodeling
contractor in the building and, construction- industry.
During the 12-month 'period ending April 30, 1984,
Respondent O.V., in the-,course and conduct of its busi-
ness operations, performed services valued in -excess of.
$50,000 in-States other than the State of Missouri.
It is set forth in the complaint that Respondent'Voor
hees and Respondent, O. V.,, at all times material 'herein,
have been affiliated as businesses engaged in a' common
or related enterprise with common facilities, equipment,`
offices, ownership, employees, control and'-formulation
and administration of labor 'relations policies, and consti-
tute 'a single integrated enterprise, "and that Respondent
O.V.1 to the extent it is-engaged in' busineis as a painting
contractor, is.and has ' been at all times material herein
acting `jointly with or as the alter ego of Respondent
Voorhees and that Respondent Voorhees and Respond-
ent,O.V.., acting jointly or as the alter ego-of one an-
other, are ' now, - and have been at all times material
herem, employers engaged in commerce within, the
meaning of Section 2(2), (6), and (7) of the Act.
The evidence in this case establishes that Oliver,Voor:
l'ees' is the 100-percent owner of O.V. and the 70-percent
owner of V_ ooj ees, and is the president of both compa-
nies '. The evidence further shows that these companies
share premises at- 8444" Alabama in the city of St. -Louis,
that-they 'generally-- use the services of the same clerical
employees, that they have the ' same officers, and that
they use the same office equipment . On occasions' em-
ployees, have also been interchanged between the two
Companies -and have "worked on the same painting
project-one,picking up the work where the other leaves
' Both Companies are incorporated under the laws 'of the State of Mis.
soun, as aforestated, and the annual registration reports filed by the cor`-
porations list the same president (Oliver B Voorhees), secretary (Mary
Alice Voorhees) and treasurer (Oliver B Voorhees), and list two
common directors'(including Oliver B. Voorhees) See G C Exhs 2 and
2(b) . - '
782- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
off. It also appears that on such projects the employees
used equipment and supplies furnished by either of the
Companies and on occasions the employees do not know
which Company they are actually working for at a par-
ticular time until they receive their paychecks . Painters
for both Companies have been hired by the same individ-
ual and are supervised by the same people . Moreover,
Oliver Voorhees and his sons do the estimating and con-
tracting for both companies . It was also established that
Respondent O.V. is involved in the business of remodel-
ing hotels and motels and that Respondent Voorhees is a
St: Louis area painting contractor .2 Both companies are
covered by the same general liability and workers' com-
pensation insurance policies.3
Counsel for Respondents contends and argues that the
Companies here in question do not have a common busi-
ness practice and citing for his authority Glengarry 'Con-
tracting Industries, 258 NLRB 1167 (1981 ). Counsel main-
tains that Respondent O.V. performs remodeling work
on a_nationwide basis while Respondent Voorhees is no
more than a local painting contractor , and although
Voorhees employees have on two or three occasions
been paid by ON., this has happened only in St . Louis,
and this practice represents a de minimis amount of work
when viewed in relation to all of the work that Respond-
ent O.V. performs. Moreover , it is further argued that.
while they may be viewed as joint - employers on those
projects where they have employed the same employees
in St . Louis, they are not alter egos , and a finding that
they are such is unnecessary since Respondent Voorhees,
its officers or agents , have ' possession of materials and in-
formation sought by the Union , and therefore to make
any fording regarding the status of Respondent O.V.
would be improper- as this case should be decided on the
narrowest possible grounds.
.The Board in its recent decision -in Fugary Continental
Corp., 265 NLRB 1301 ( 1982), reiterated the criteria re-
quired to support an alter ego finding: -
[W]e must consider a number of factors, no one of
which , taken alone , is the sine qua non of alter ego
status . Among 'these factors are: common manage-
ment and ownership ; common business purpose,
nature of operations , and supervision;, common
premises and equipment; common customers, i.e.,
whether the ' employers constitute "the same busi-
2 The parties stipulated -that if Oliver Voorhees had testified , he would
have established that Respondent O.V. does approximately $ 1 million
worth of volume a year, and is involved in the remodeling of hotels and
motels and that it , subcontracts out with various employers performing
plumbing , carpentry , painting , electrical , and other such .trades. It was
also, stipulated that Oliver Voorhees would testify ,that of the $1 million
ui volume that O.V does perform, that approximately $50,000 of that
volume is done in the St. Louis area. It was further stipulated that Oliver
Voorhees would testify that Respondent O.V. is engaged in this line of ,
work , as described above, in a number of States throughout the United
States.
', The'most recent collective -bargaining agreement ' between Voorhees
and the Union covers the period January 27 , 1983, through November
30, 1985 (G C Exh 3). In sec - S of the agreement the parties have recog-
nized the Union as the "exclusive bargaining agent for1all journeymen
painters , tapers, and drywall finishers , paper and wallcovering hangers,
apprentices and working foremen employed by the Employer ." Sec. 13
of the agreement sets forth the wages and benefits for each of , the catego-
ries of work performed by bargaining unit members.
ness in the same market"; as well as the nature and
extent of the negotiations and formalities surround-
ing the transaction. We must also consider whether
the purpose behind the creation of the alleged alter
ego was legitimate or whether, instead, its purpose
was to evade responsibilities under the Act.
In the instant case, the evidence established that the
two Companies here involved share an office at 8444
Alabama in St. Louis and in which office the same cleri-
cal staff -performs work for both Companies. Credited
testimony was also offered that the same painters are em-
ployed by' both entities-during the weekdays for Re-
spondent Voorhees and on weekends for Respondent
O.V. International. The painters appearing for the Gen-
eral Counsel testified that while working for O.V. they
have worked at the same jobsites, performed the same
work, used the same equipment, and were being super-
vised by - the same individuals as while working for
Voorhees. They were also compensated for weekday
work by Respondent Voorhees and for weekend work
by Respondent O.V.
Common ownership and management are also further
demonstrated -by documentary evidence showing that
both are incorporated under the laws of Missouri, and
both list the same president, secretary, treasurer, and two
directors- (O.V. International lists one additional office
and one additional director). Testimony offered at the
hearing also established that Owen Sutton and Arthur
Jackson were employed as superintendents for both Re-
spondent Voorhees and for Respondent O.V. Interna-
tional . Finally, the parties stipulated, as aforementioned,
that the two entities were covered by the same insurance
policies for general liability and for workers' compensa-
tion. - -
Superintendent Arthur Jackson testified that the paint-
ers who worked -for Respondent O.V. were the same
painters - that worked weekdays for Respondent Voor-
hees, but when they were hired they were never in-
structed 'that they were working.for two different em-
ployers. Jackson also testified that on one. occasion he
was instructed to keep separate timecards on the week-
day and weekend time put in by the painters. Finally,'
Jackson testified that the people he selected to work
weekend time for Respondent O.V. were selected be-
cause he felt those individuals were unikely to complain
to the Union about the practice.
Respondent O.V. International argues that its purpose
and operations are broader and -encompass a much larger
geographical area than do the purpose and operations of
Respondent Voorhees: ,However, as pointed out, within
the St. Louis Metropolitan area the painting purpose and
operations of the two Companies are virtually indistin-
guishable-the weekend painting operations of Respond-
ent O.V. duplicate the weekday operations of Respond-
ent, Voorhees, complete with the same worksite and
work force. Finally, Arthur Jackson testified' that in
hand-picking painters for the weekend operation of Re-
spondent ON., he specifically avoided those workers
who he thought would complain to the Union.
,It is quite, apparent that these two Companies fit well
within the category of alter ego employers as the, evi-
O VOORHEES PAINTING CO.
dence in this record clearly reveals that Respondent
Voorhees and Respondent O.V. -have common owner-
ship and management (both controlled by Oliver Voor-
hees), business purposes , employees , equipment , custom-
ers, supervision , financial control , and related operations
and central control of their labor relations , and based on
this uncontroverted evidence the conclusion is plainly
warranted that these two Companies are alter egos and,
of course , the obligation of an alter ego requires that, it
abide by the terms of any existing collective -bargaining
agremeent.
Respondents are now , and have been at all times mate-
rial herein , an employer engaged in commerce within the
meaning of Section 2 (2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
It is alleged in the complaint that since about October
17, 1983 , Respondents have failed and refused to pay unit
employees according to the collective-bargaining agree-
ment , and have failed and refused to make all of the con-
tributions due on behalf of unit employees according to
this collective-bargaining agreement ; and that since about
October 17 , 1983, Respondent Voorhees has used Re-
spondent O.V. to pay for work performed by unit -em-'
ployees at less than the wage rates and benefits specified
in the collective -bargaining agreement, and in doing. so
has repudiated its collective -bargaining agreement. .
It is further , alleged that since January . 6, 1984; the
Charging Party has requested Respondent - Voorhees to
furnish the Charging Party with . the following informa-
tion for 1983: -
A. Regular and payroll cash disbursement' books
B. Unemployment forms for all states
C. Bank statements and cancelled checks
And that since about March ' 16, '1984 1- the Charg'ing'
Party has requested Respondent O.V.' to- furnish the
Charging - Party with the following information for 1983:"
A. Regular and payroll cash disbursement books.
B. Payroll tax returns : State of Missouri and
other State unemployment returns and , Employer's
Quarterly Federal Tax Returns , Form 941
C. Payroll cards and timecards
D. Bank statements , including cancelled checks „ .
E. Dues and fringe benefit , contribution-reports,
submitted to labor organizations other than.. the,
Painters District Council No. 2 'and its related bene-
fit plans
F. Payments made for , performance of painting or
related work to such contractors , independent; con-
tractors , or any other business or person other than
an employee -
It is also alleged that this information requested by 'fhe
Charging Party is necessary for, and relevant to, the
Charging Party's performance of its functions as the -ex-
clusive collective-bargaining representative -_of 'the unit,
783
but that since about January 6 and March 16, 1984, re-
spectfully;, Respondents ' have failed -and refused to fur-
nish the Charging Party ; witli all of the information re-
quested, by it as described above.
The record shows -that on Saturday , , October 8, 1983,
during the payroll week which ended. October - 11, 1983,
Union Business Agent Martin Bergeron went to a jobsite
of Dave Sinclair Ford :,rin the _ St. Louis , area where he
found six of the , union members -painting -for Respondent
Voorhees-, Stanley . Johnson, . Tom Kelley , Steven Brad-
ley, Frank . Day, Johnny Davis, . and another worker by
the name of Johnson, and some of them were using spray
equipment. .
In early ' November 1983 , Respondent Voorhees filed a
report with the Union for the week ending October •11,
1983 (G . C. Exh . 4), called the contributions report
form-this form is used by-employers to report the
number of - hours and . overtime ' hours worked by each
employee ,' 'gross wage 's' received ,' and the' percentage of
the wages checked off - for dues, and from ' the ihforina-
tion 'on- this ' form 'the welfare, pension, - apprentice-.
ship/journeyman fund ,' and` vacation fund are all ` to' be
calculated ; as welll ' as' a foundation fund and a 2-percent-
of-earnings withholding . for union ' dues.. However, the
Voorhees contributions report . form did not show ; the
above named employees as ,entitled to overtime for over
40 hours .;work,, or receiving any double time pay , premi-
um _ foreman 's' pay or spray work pay, and all } of which
are premium items under the,existing collective-bargain'-
in g, agreement which, was executed by Oliver Voorhees.
This record also' shows ', that : on .December 15, 1983,
Business Agent Bergeron ,went to the Lindbergh Cadillac
place of business in downtown St.-Louis ,- an d. two of the
union painters on this job , showed him paychecks for the .
past :week .' The checks' show that Respondent Voorhees
paid for 40 hours at straight ,time_(G.C. Exh.,5), and;Re=
spondent O.V.. paid the same employees for 10 hours the
sane week at straight-time 'rates (G.C:.Exh. -6), ,and when
Respondent Voorhees 'filed"its 'contributions report"form
covering the week ending December 13, 1983 ,' ii did not
show any overtime 'work 'or spray-time pay for employ-
ees' Burgett;-Baird , "and Trucks, who were working at
Lihdbergh ' Cadillac on that Saturday . To the contrary,. it
appears ' that employees working at the Lindbergh Cadil-
lac jobsite during the week in question were reported on
the,:contributions ; report form for Respondent Voorhees
and, received , a check:.from , Voorhees _ for only 40 hours'
work , and the -report does, not disclose that , for this over-
time work 'they were paid ' by =check drawn on, Respond-
ent O .V but which .,wa's-paid as straight -time , hour"s
($16.47). and. with 'no extra pay for spray .work , or -fore-
man's duties (G.C: Exh : '7). '
" The testimony about the Decembe 'r' 1983 " painting job
at the ' Lindbergh Cadillac , jobsite ,was,. also corroborated
by former4'employee ' Steven Burgett . He testified . that
during 'the nor̀mal"5=day - week , the painters ` worked for
Desponden't' Voorhees and 'were'paid with 'the Voorhees
check, but when he worked on a weekend at the same
jobsite ,"-he• was then- paid -with' an O.V. check .- Burgett
also testified that on the Cadillac job, ' he was the fore-
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man on the paint crew and that some spray painting was
done on this job.4
Arthur Jackson, who worked for Respondent Voor-
hees for 3 or 4 years prior to September 9, 1983, as its
superintendent and who did hiring and firing on painting
jobs for both Companies, testified, without contradiction,
that while he was working for Respondent Voorhees
there was no overtime rate paid; that if there was an
overtime job for Voorhees or work on Saturday, the em-
ployees would be taken from Voorhees' payroll and put
on O.V.'s payroll and then paid through O.V.'s pay-
check,,and this was done pursuant to the instructions of
the president of both Companies, Oliver Voorhees, and
by his two sons-Jackson could remember at least two
times when this occurred while he was at Voorhees-the
Hampton Bank job and the Holiday Inn job. As pointed
out, he affirmed the fact that the painting work done on
weekends, while employees were on the O.V. payroll,
was the same type of work as had been done during the
week for Voorhees. Jackson further testified that when
employees did work on the weekend or overtime, they
were paid straight-time pay rather than the double-time
rate called for by the contract, and that he knew this be-
cause he handled the checks that were given to- the em-
ployees. Jackson stated that in selecting painters to work
on the weekends, he chose the ones which he believed
would work for straight time and would not complain to
the Union, and then admitted that he followed this prac-
tice for the purpose of concealing the violations of the
bargaining agreement from the Union.
' On December 29, 1983, 'the ' Charging Party filed a
grievance against Respondent Voorhees alleging that
Voorhees had falsified certain reports and had failed to
pay shift premiums, foremen's premiums , spray premi-
ums, and overtime rates for weekend work. In the griev-
ance it was also alleged that Voorhees had failed to issue
to six employees proper statements of earnings, had sub-
contracted to a nonsignatory contractor (Respondent
O.V) who had failed to report overtime, and had failed
to pay required wages to one employee.5
By letter dated January 3, 1984, Lawrence Kaplan, at-
torney for the Respondents, notified the Joint Trade
Board that Respondent Voorhees objected to the griev-
ance as untimely and stated that his client would not
attend the scheduled hearing set for January 10, 1984, on
the grievance. 6 However, Attorney Kaplan appeared at
the grievance hearing of the Joint Trade Board, and in
so doing again objected to the timeliness of the griev-
ance, but then agreed to discuss the matter with an attor-
ney for the Union in an attempt-to resolve the dispute. It
appears that this matter has not been brought before the
Joint Trade Board again . and the two attorneys have
never reached a resolution of the matter.
* As indicated , Burgett's paychecks from Voorhees and ON were put
in evidence as G C Exhs 5 and 6, and they show that Burgett did not
'receive overtime pay from 0 V or Voorhees, nor did he receive supervi-
sor's pay However , Burgett then filed an mdividual'gnevance over his
failure to obtain the double-time rate on the weekend , and the particular
matter was settled when double-time payment was subsequently made
s, G C Exh 11
6SeeGC.Exh 10
I will now set forth the factual circumstances pertain-
ing to the allegation that the Respondents have failed
and refused to furnish certain information relevant to the
Union's performance of its function as exclusive collec-
tive-bargaining representative of the employees in the ap-
propriate unit. _
It appears that after the Union determined that Voor-
hees and/or O.V. were not living up to the terms of the
current bargaining agreement, it decided to find out to
what extent the unit employees were entitled to addition-
al payments and what additional payments should be
made to the fringe benefit funds.
By letter dated December 29, 1983, the Union request-
ed of Voorhees, for the above purposes and in order to
investigate their grievance concerning the failure to pay
wages and fringe benefits, certain information concerning
the unit employees and asked that these records be fur-
nished to their accounting firm of Grabel, -Schnieders
and Company.7
By letter or memo dated January 6, 1984, the account-
ing firm then requested Voorhees to furnish for the year
1983 their payroll cash disbursement books, cost records,
Form 941, unemployment forms for all States , timecards,
W-2 forms, and its bank statements and canceled
checks.8 '
On March 16, 1984, the accounting firm also sent a
letter to O.V. asking it to furnish, for the 'year 1983,
O.V.'s regular and payroll 'cash disbursement books; its
payroll tax- returns for the State of Missouri and other
state unemployment returns and their quarterly Federal
tax returns including Form 941; its payroll cards and
timecards; its bank statements including canceled checks;
its, dues and fringe benefit contribution reports submitted
to labor organizations other than the Union; and pay-
ments made for performance of painting or related work
to such contractors, independent contractors or any
other business persons other than an employee. 9
In reply to the request of January 6, 1984, Voorhees
produced the state unemployment forms for 1983, but
"blacked out" the names and amounts of pay for certain
employees. i 0 Voorhees also produced the cash disburse-
ment for payroll on computerized printout, but did not
produce the cash disbursement on other checking ac-
counts. Voorhees did not produce its bank statements
and canceled checks for 1983, nor did it produce the W-
2 forms for all of its painters. Voorhees did furnish time-
cards for individual reports on contributions and cost
records relating to painting work, and also , furnished
some of the W-2 forms. .
By letter dated March 19, 1984, the, accounting.,firm
again requested of Voorhees all of the state's employ-
ment forms not "blacked out," cash disbursements for
payroll and regular checking accounts ' for 1983, and
bank statements and canceled checks for 1983.111,
7 See G C Exh 19
8 See G C Exh 13
9 See G C Exh 16
10 See G C Exh 14
' ` See G C Exh. 15
O. VOORHEES PAINTING CO
The General Counsel produced testimony 'through
Ross Jacobs, a CPA for the accounting firm of Grabel,
Schnieders; and Company, in explanation why the miss-
ing records were necessary in order for the accountant
to check against each other in efforts to determine if
Voorhees was making timely and proper payments to the
various funds and dues in'behalf of Voorhees' employees,
and in accordance with the bargaining contract. After
Voorhees had failed to produce some of the information
requested in January, a new request was made on March
19, 1984, as aforestated, for the information which has
not been supplied, but the missing information has never
been produced. -
Respondent O.V. produced some of the information
which was requested of it in the letter dated March 16,
1984, but other information was not furnished. It did not
furnish its cash disbursements, regular and payroll, nor
its payroll tax returns by the State of Missouri and other
States' unemployment returns, nor its employer's Federal
tax return Form 941. It did not furnish its bank state-
ments including canceled checks, and O.V. did not re-
spond to the request for contribution reports for dues
and fringe benefits made to labor organizations other
than Painters District Council No. 2. Respondent O.V.
did produce some timecards (Federal Form 1099) relat-
ing to four-painters in connection with the request of
painting and related work to subcontractors and others
not employees of O. V. I 2
Ross Jacobs, the CPA for the accounting firm, again
testified as to why the records which were not furnished
were necessary to determine proper payments were
being made to the various funds in behalf of employees.
The testimony concerning the failure to furnish informa-
tion was not controverted by either ,Voorhees or O.V.,
nor did they seriously contest Ross Jacob's explanations
concerning the relevancy of the materials. requested.
Final Conclusions -
A threshhold question in this proceeding is the conten-
tion and argument by Respondents that this case should
be deferred to arbitration pursuant to the Collyer doc-
trine.
On' December 29,' 983, the Union filed a grievance, as
aforestated, maintaining that Voorhees had failed to
make certain payments pursuant to their, contract, and
the matter was pending before the Joint Trade Board-a
joint labor and management entity charged with the ad-
ministration of the collective-bargaining contract.
The' contract here in question, General Counsel's Ex-
hibit 3, provides in section 3-"Administration"-in per-
tinent part 'as follows:
The,parties hereto, during the life of this Agree-
ment mutually agree that the Joint Board shall have
and be vested with the following rights, powers and
obligations: "The Joint Board shall have the power
to adjust and settle all disputes, including safety dis-
12 By letter to Grabel, Schnieders and Co, dated March 26, 1984, At-
torney Lawrence Kaplan, representing 0 V, notified the accounting firm
that 0 V. had voluntarily made available Federal Form 1099, but would
supply no further information G C Exh 18
785
putes , and grievances that may arise under the
terms of this Agreement , to resolve and determine
all conflicts between the parties concerning the in-
terpretation of the provisions of this Agreement,
and to make and promulgate such rules and regula-
tions as may be deemed necessary to give force and
effect to the intent , purpose and meaning of this
Agreement . The Joint Board shall also have the power
to demand of the parties hereto the production of all
records deemed relevant by the Joint Trade Board to
any case where an alleged violation of this Agreemeent
is involved . With reference to the foregoing matters,
the decisions , determinations , rulings and orders of
a majority of the Joint Board shall be final and
binding to the parties of this Agreement ." [Empha-
sis added.]
This same section also provides that the bylaws of the
Joint Trade Board shall be incorporated into this agree-
ment by reference, and Respondents point out that the
bylaws give the Joint Board authority to make final and
binding interpretation of the bargaining agreement,-and
power to require any employer or union to produce any
records deemed by the Board to be relevant including
the production of timecards, payrolls,, cash disburse-
ments, tax returns, .and ledgers in relation to unpaid
wages and/or fringe benefits. _
Respondents further argue that in the instant case the
parties have already proceeded to the arbitration process
and, in fact, it was stipulated that this matter was re-
ferred.to an attorney for the Union and an attorney for
the Employer in an attempt to resolve the dispute be-
tween the parties., Moreover; in the instant case the Joint
Trade Board has the broadest possible powers in, regard
to the collections of. the records it now seeks, and the
Union's own testimony in this case is that the records in
question are in possession of agents. and employees of
Voorhees. %
In Collyer Insulated Wire, 192 NLRB 837 (1971), the
Board dismissed a complaint alleging unilateral changes
in wages and working conditions in violation of Section
8(a)(5) in deference to the. parties' grievance-arbitration
machinery. The Board, in part, stated: , . - .
We agree with Respondent's contention that this
dispute is essentially a dispute over the terms and
meaning of the contract between the' Union and the
Respondent. For that reason, we find merit in Re-
spondent's exceptions that the dispute should have
been resolved pursuant to the contract. .... [Em-
phasis added.] .
In United Technologies -Corp., 268 NLRB-557 (1983),
the Board noted and pointed out that "the Collyer major-
ity articulated several factors favoring deferral: The dis-
pute arose within the confines of ,a long and productive
collective-bargaining relationship; there was no claim of
employer animosity to the employees ' exercise , of pro-
tected rights; the parties' contract provided for arbitra-
tion in a very broad range of disputes; the ' arbitration
clause clearly encompassed the dispute at issue ; the em-
ployer had asserted its willingness to utilize arbitration to
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resolve the dispute; and the dispute- was eminently, well
suited' to resolution by arbitration. In - these circum-
stances, deferral to 'the arbitral process merely gave full
effect to the parties' agreement to submit disputes to ar-
bitratiou. In essence, the -Collyer majority was holding
the, parties to their bargain by directing them to avoid
substituting the Board's processes for their own mutually'
agreed-on method for dispute'resollition:"
Applying the principles and factors deemed relevant in.
Collyer, it becomes clear that the instant case is not one
which is appropriate for deferral. As indicated, it is quite
obvious,.that none of the Charging Parties'' allegations,.
and none of the issues raised in this case,, involves the in-
terpretation over. any -terms or meaning of the collective-
bargaining agreement. The complaint alleges that Voor-
hees has-failed and refused to-pay the wages and • all the
fringe benefit contributions required by the, bargaining
agreement, and that Voorhees.has used O.V. to accom-.
plish the payment of_less, than the-required; overtime and
benefits. 'I am in agreement that resolution' of those issues
does not require the-interpretation of'any contract terms
or meaning , Voorhees has not 'asserted any, claim of con-,
tractual''privilege to_ pay less in wages, overtime, "e, or
fringe benefit contributions 'and dues than is' provided by
the collective-bargaining agreement'and, if so, any refus-
al or failure' to pay its unit employees at the rates specifi-
cally`provided by the-agreement must"be regarded'as an
attempt by-Voorhees to undermine the Union and repu-
diatethe contract!'Clearly,-as noted'by'the Union, this'is
not a case which' pivots on a question -of -contract con-
struction. - , • _ = ' ' - , .
.
° ' - .
-The complaint -rn- the instant case also alleges -that Re-
spondents refused-to provide information which is neces-
sary .and relevant to the -Unioii's''performance of its
duties as the. exclusive' bargaining agent,- as, aforestated.,
The, Board' has -consistently held that a refusal ;to furnish..
information relevant'-to contract administration and en
forcement may- itself be.viewed••as an obstruction,. and in
cases . alleging ;such refusals, deferral is inappropriate. A.
O: Smith. Corp., 233, 838 rfn..14 (1971). 13 In .;essence,,the,
complaint herein, is, also not, appropriate. for deferral to.
arbitration because the Union. has been denied access to
the'information it needs to assess and process a grievance;
based on the same facts that are alleged here to consti-
tute unfair labor practices. However, the Respondents
maintain that the 'Joint Trade Board is : given' broad
powers in getting the records and infoririation -now
sought. As pointed out, the answer to this argument,
even' "accepting -, the Respondent's conte'ntion'-.in- this
regard, is that deferral' would be inappropriate' because as
a result-of Respondents refusal 'to give the;requesfed re-
ports, the Union is" unable to file a,.grievance,.wh'ich "fully
and. specifically.; sets out the alleged-",contractual viola-
tions. -
`-As aforestated, Voorhee"has'asserted"that-the''gi-ev-
ance -was untimely 'and notified the Union that it would
not- appear at , the scheduled grievance; hearing,., but the
Respondent's"aftorriey- did 'appear'-at a'-later meeting of
the' Joint -Trade Board, but again asserted the'' untimeli-
ness of the grievance, and it appears to. me that in so
13 See also General Dynamics Corp, 268 NLRB 1432(1984)
doing Voorhees waived any right they may have had for
deferral to arbitration. Deferral is not appropriate unless
the employer unequivocally. waives all timeliness objec-
tions to,the grievance. Pilot Freight Carriers, 224 NLRB
341 (1976). Moreover, as pointed out, the Respondent's
offer at the hearing before me to waive the timeliness ob-
jection is simply not sufficient to justify deferral. To
permit a party to waive for the first time its timeliness
objection during the hearing, frustrates both the efficient
functioning of the grievance procedure and the orderly
enforcement of the Act.
In the final analysis, the primary focus of the com-
plaint herein is the relationship between O.V. and Voor-
hees, and the complaint alleges that they are either joint
employers, a single employer, or alter egos, as aforestat-
ed, and the Charging Party is seeking the application of
the collective-bargaining agreement to the St. Louis area
painting employees of both Corporations. Further, the
Union is seeking information and.relief against both Cor-
porations, and, as suggested by the Union, it is difficult
to envision how O.V. would be bound by any action of
an arbitrator in that it is not formally a signatory to the
bargaining contract. 14
In summary; the issues involved here do not 'turn on a
question of contract interpretation. Further, as also indi-
cated, the complaint involves the Respondents' refusal to
supply information to the Union, and such complaints
are not subject to deferral. The Respondents further ob-
jected to the timeliness of the related grievance and
thereby, rendered deferral inappropriate and, finally; the
complaint raises, issues an arbitrator is without power to
fully resolve or remedy. -
I now return to the allegations, that Respondents have
failed to properly pay unit people in ;certain situations
and failed to make fringe benefit contributions, according
to, the bargaining agreement and, in so doing,. has repudi-
ated its contract.
Respondents argue that at no time did the General
Counsel prove that the Respondents did not pay the ap-
propriate wage or fringe benefits-that Business Agent
Bergeron testified -that Voorhees called in overtime on
the Monday following the Saturday the alleged overtime
occurred. Moreover, that on the two,or three occasions
when employees of Voorhees were paid by checks issued
through O.V.-Voorhees then took the responsibility. to
make certain that the contractual provisions- were com-
plied with.
'The ' credited testimony in this ' record shows that
Voorhees, ' on different occasions, - avoided giving effect
to the terms of. the bargaining agreement 'by not paying
employees, for, overtinie or for Saturday or Sunday work
as' provided, in sectioiis • 16 and 17 , of General Counsel's
Exhibit '3' (the contract), and it did not pay premium. pay.
for a foreman or for spray paint'work as provided for in
section" 13 of "the contract. As' -the' "evidence reveals,
Voorhees and O.V. shifted, painters back and' forth be-
tween their payrolls so. neither wouldshow that the. em-
'* Where one of the parties that might be affected by an arbitrator's
award is not party to the collective-bargaining agreement establishing the
grievance and arbitration procedures, the Board has consistently held de-
ferral is inappropriate Retail Clerks Local 588, 244 NLRB' 1638 (1976)
O. VOORHEES PAINTING CO. 787
ployee was performing more than 40 hours' work in a
week. Moreover, as also indicated, while the employees
were on O.V.'s payroll, the terms of the bargaining'
agreement were ignored because Respondents contended
that O.V. is not bound to follow the terms of the bar-
gaining agreement, as as a result of such conduct, the 2-
percent checkoff of weekly wages, which is required by
section 36 of the agreement, was underpaid by Voorhees
and the fringe benefit funds provided for in the bargain-
ing agreement in sections 34, 35, 37, and 38, did not re-
ceive their proper or full contributions from Voorhees.
Respondent O.V. made no reports or payments under
the agreements, and the concealment of the hours
worked and the straight-time payments made to employ-
ees on overtime through the use of an alter ego, plainly
violate Section 8(a)(1) and (5) of the Act.15
Moreover, -in the instant case no evidence or conten-
tion was offered to substantiate a finding that any legiti-
mate economic reasons motivated the decision to have
weekend painting work performed by Respondent O.V.
In fact, the contractual provision demonstrates that sub-
contracting of painting work is not a customary and ac-,
cepted_ practice of the Employer, and it is even prohibit-
ed by the contract. i 6 As pointed out, the practice here
in question between Voorhees and O.V. is a substantial
deviation from the established practices of Voorhees,
which, pursuant to the contract, are to pay shift premi-
ums, foreman's premiums, spray 'premiums, and double-
time pay to painters' for all overtime work. 17 The prac-
tice here in question resulted in painters' losing premium
and double-time pay for work they performed for ON.,
and the testimony also established that this practice re-
sulted in other painters (the ones thought likely to com-
plain to the Union) losing opportunities to perform
weekend work Finally, there is no evidence to establish
that the Union was given notice or opportunity to bar-
gain over the practice.
I will not set forth my final conclusion as to the alle-
gation that Respondents failed to-furnish the Union with
all the information requested.
It is well established that a labor 'organizatioii ,' acting
in its capacity as collective-bargaining representative, is
entitled, on appropriate request, to information from the
employer that is needed by such bargaining agent for the
proper performance of its duties.18 The employer's obli-
i 3 For overtime on the Lindbergh Cadillac Job-Steven Burgett filed a
grievance and ended up receiving double-time payments , as aforestated
However, there appears to be no other like situations where payments
were subsequently made, and in addition to the Lindbergh Cadillac Job,
Arthur Jackson, without contradiction, could recall at least two other
jobs where employees would be taken off. Voorhees' payroll on Saturday
and then paid straight time by 0 V for weekends The General Counsel
has submitted adequate evidence that on occasions the Respondents did
not pay the appropriate wages or fringe benefits.
1,6 Sec 4 of the collective-bargaining agreement between Voorhees and
the Union provides, in relevant part
The Employers signatory to this Agreement or Memorandum of Un-
derstanding shall not subcontract'out of work under the jurisdiction
of the Painters District Council No 2 to any contractor or other
person not signatory to this Agreement
The Union asserts that the employment of painters by 0 V. for
weekend work at straight-time pay constitutes subcontracting or, m the
alternative, a transfer of bargaining unit work
18 NLRB Y Acme Industrial Co, 385 U S 432 (1967).
gation to supply relevant information is part of its .gener-
al obligation to bargain , in good faith and applies, not
only during the period , of contract negotiations , but also
during the . term of an agreement . In the latter period, the
bargaining agent is entitled to information relevant to the
performance of its duty to police the administration of
the existing agreement as well as its duty to formulate
proposals in connection with future - contract negotia-
tions. 19
Uncontroverted evidence in this record shows that the
Union requested certain information from Voorhees and
O.V. As set forth , this- request was made after it became
apparent that Voorhees and O .V. were acting in concert
in order to underpay the employees , to underpay union
dues , and to underpay the fringe benefit funds which
were established for the benefit of the employees, and
having made this discovery the Union was no longer
willing to accept ' Voorhees ' contribution 'report forms as
accurate . It then hired an accounting firm to check the
contribution forms against ' other employer records of
both Voorhees and ON., and the accountant, being
aware of the attempts to evade the bargaining agreement
by the use of inadequate contribution report forms, then
requested information from both of the employers.
It appears to me that the information requested from
Voorhees and from O.V. is highly relevant to the
Union's duty as the -exclusive bargaining agent . The in-
formation was requested in connection with a grievance,
and is necessary to enable the Union to process that
grievance . The information is also relevant to the con-
tractually established pension and welfare .- plan, and is
further required to enable the Union to verify whether
proper contributions have been made . Finally, the infor-
mation sought is relevant to the allegations of failure to
pay contractual wages and contributions, and while
Voorhees. provided limited records in response to the
Union 's request, it was not comprehensive and was insuf-
ficient to enable the Uriion to determine whether appro-
priate contributions have been made . Moreover , the testi-
mony ' of accountant Ross Jacobs demonstrated that the
information requested is essential to that determination. 20
19 Western Massachusetts Electric Co, 234 NLRB 118 (1978).
80 Jacobs was asked the significance of the.-blacked out" names on
some of the unemployment forms furnished by Voorhees, and he replied
as follows:
A Well, what I don't know under those blacked out amounts is if
they are a painter or some other individual If they are a painter they
were not reported to the Union then we need to pick that up and
compute the fringes and dues due on those amounts
Q And how would. you determine if they were a painter?
A. We will first, if-if it's an individual that we're not sure of we
can call the Painters Umon to see if they are a member. We can call
the individual to see if he is a pamter.,If he did painting work and
we can also ask the Company what is the job duties of that individ-
ual ' . I ,
Q After receiving this form blacked out did you have any com-
munication with the Company concerning that ? With Voorhees?
A Yes We had requested the State Unemployment forms with no
amounts blacked out.
Q. And did you receive that type form?
A No, we did not
Q With nothing blacked out?
A No, we did not.
788 .DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Likewise, O.V. as. an "alter ego" employer of the
painters' is also obligated to -furnish information the
Union requested of • it. Again,` this information is highly
relevant for" -a determination of whether appropriate
- wages and contributions to-the funds have'-been paid.
Accountant Jacobs was also asked why he requested
from V.O. the dues and fringe benefit reports, and he re-
plied'
A. We requested the dues and fringe benefits • re-
ports from other labor organizations that' the con-
tractor has submitted-for:the reason when we look
at all the employees we need to determine whether
they're painters or whether they're laborers; or what
they are. So if we can look at another Union re-
ports. and they're being reported through another
Union as a laborer or as a carpenter then we can
come to the conclusion that those individuals are
not painters hut they are in fact a carpenter or a.la-
. borer and "we, can also check with • the, -Painters
Union to make sure that ,they, are not a member of
that Union. We can determine what individuals: are
painters and what individuals are not. 'If they're
being reported to another-another Union.
Q. As to payments made for performance of
painting and relating work to subcontractors 'why
did'you want that information?
A. We wanted to make sure that the contractor
was not paying individuals and calling-not calling
it salary, just 'paying' them and` calling it 'subcon-
tracting work and, therefore, not reporting 'it to the
Union. If-if-if they're paying what we want to
do is make sure they were not paying an employee
amounts"and calling it subcontracting . And if they
called it subcontracting it would not be-on the pay-
roll report and then they probably wouldn't be `re=
porting it to the Union.
0. From the information which you received
from O.V. International and from Voorhees were
you able to determine whether or not Voorhees is
meeting its obligations to -pay to the funds and for
dues check-off?
MR. KAPLAN: Objection. That's irrelevant and
immaterial.
JUDGE SAUNDERS: Well, I'll take your answer.
THE WITNESS: Could you repeat the question?
Direct Examination (Resuming)
By Mr. Stevens:
Q. From the :information that was supplied to
you by-O.V. International and by Voorhees are you
able to determine whether or not Voorhees is
making the payments required to the various funds,
the pension, welfare, vacation fund and to the two
per-cent dues check-off?
A. In certain areas we can determine if they are.
But there are certain areas we cannot because we
do not have'the necessary documents.
Q. If you had received all the documents request-
ed in General Counsel's Exhibit 14 and 16 would
you be able to make that determination?
A. Yes, we could.
Failure to produce such relevant information is viola-
tive of Section 8(a)(1) and (5) of the Act, and I so find.
THE REMEDY
Having found that Respondents have engaged in cer-
tain unfair.labor practices, I shall- recommend that they
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
I shall recommend.that Respondents make whole the
employees in the appropriate unit by transmitting to the
Union the payments owed to the fringe benefit funds
pursuant to the terms,of its collective-bargaining agree-
ment with the Union, as-set forth in the collective-bar-
gaining agreements ,21 and make reimbursements to em-
ployees, for money or wages improperly withheld from
their pay under terms and provision in the bargaining
agreement, and interest thereon shall be computed in ac-
cordance with the Board's decision in Florida Steel Corp.,
231 NLRB 651 (1977.). -See. generally Isis Plumbing Co.,
138. NLRB. 716 (1962). In addition, furnish the Union
with all of the requested information and reports hereto-
fore found relevant and, necessary for contract adminis-
tration.
CONCLUSIONS OF LAW
1. The Respondents are employers , engaged in com-
merce: within the meaning of Section 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: Respondent O.V. is an alter ego of Respondent
Voorhees acting jointly with one another.
4:: The unit -set • forth below is an appropriate • one for
the-purposes,of collective bargaining.
All journeymen painters, tapers and drywall finish-
ers, paper and wallcovering hangers, apprentices
and working foremen employed by the Respond-
ents, EXCLUDING office clerical and professional
employees, guards and supervisors as defined in the
Act. -
5 By failing and refusing to pay unit employees cer-
tain wages and by refusing and failing to make all of the
contributions to the fringe - benefit funds pursuant to the
terms of the collective -bargaining agreement with the
Union, Respondents engaged in an unfair labor practice
within the meaning of Section 8(a)(5) and (1) of the Act.
6. By failing and refusing to furnish the Union with all
the information and reports requested, Respondents have
21 Because the provisions of the fringe fund agreements are variable
and complex , the Board does not provide for interest at a fixed rate on
fund payments due as a part of a "make-whole" remedy It is therefore
left to further proceedings the question of how much interest Respondent
must pay into the funds in order to satisfy the "make-whole" remedy
These additional amounts may be determined , depending on the circum-
stances of each case , by reference to provisions in the documents govern-
ing the fund at issue and , where there are no governing provisions, to
evidence of any loss directly attributable to the unlawful action, which
might include the loss of return on investment of the portion of funds
,withheld, additional administrative costs, etc , but no collateral losses See
Merryweather Optical Co, 240 NLRB 1213, 1216 fn. 7 (1979).
O. VOORHEES PAINTING CO.
further engaged in unfair labor practices within the
meaning of Section 8 (a)(5) and (1) of the Act. -
7. The above-described unfair labor practice is an
unfair . labor practice affecting commerce within the
meaning of Section 2(6) and -(7) of the Act.
On these findings of fact 'and conclusions of law and on
the entire record , I issue the following recommended22
ORDER
The Respondents, O. Voorhees Painting Co. and O.V.
International, Inc., St. Louis, Missouri, their officers,
agents, successors, and assigns, shall •
1. Cease and desist from
(a) Unilaterally ceasing payments' into the Union's
fringe benefit funds, as described herein.
(b) Unilaterally refusing and failing to pay certain
wages in accordance with the terms of the collective-
bargaining agreement.
(c) Refusing to bargain collectively with the Charging
Party by refusing to supply all relevant information and
reports upon request.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them in Section .7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Make its employees and/or Union whole by paying
all fringe benefit funds contributions, as provided in the
collective-bargaining agreement , which have not been
paid, and which would have been paid- absent Respond-
22 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 pur-
poses
r
789
ent's unlawful unilateral discontinuance of such pay-
ments.
(b) Make whole unit employees for any money or
wages withheld from their pay in disregard of certain
provisions in the collective-bargaining agreement, and in
the manner provided in the remedy section of this deci-
sion.
(c) Furnish to the Union all of the information and re-
ports heretofore requested by the Charging Party and
herein found relevant and necessary in the enforcement
and administration, of the bargaining contract and, unless
contained in the above, preserve and, on request, make
available to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards; personnel records- and reports, and'all
other records necessary to analyze the amount of pay-
ments due under the terms of this Order.
(d) Post at its St. Louis place of business copies of the
attached notice marked "Appendix."23 -Copies of the
notice, on forms provided by the Regional Director'for
Region 14, after being signed by the Respondent's au-
thorized representative, shall- be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable' steps shall be taken by the Respondent to ensure
that said notices are not altered, defaced, or covered by
any other material. -
(e) Notify the Regional Director. in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
23 If this Order is enforced by-a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board " shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board " '