Petition — Associated General Contractors of California, Inc. v. National Labor Relations Board

Supreme Court brief1981

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FILED

MAR 12 1981

CLE®R .

IN THE

Supreme Court of the United States

October Term, 1980

ASSOCIATED GENERAL CONTRACTORS OF CALIFORNIA, INC.,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

Petition for Writ of Certiorari

to the United States Court of

Appeals for the Ninth Circuit.

Cox, CASTLE & NICHOLSON,

JAMES P. WATSON, EsQ.,

2049 Century Park East, 28th Floor,

Los Angeles, Calif. 90067,

(213) 277-4222

Counsel of Record for Petitioner.

Parker & Son, Inc., Law Printers, Les Angeles. Phone 724-6622

ALEXANDER L. STEVAS

LOL OO

Office-Supreme Court, U.S.

Questions for Review.

1. In enforcing the NLRB’s Order requiring a trade

association to disclose to certain Unions the names and

addresses of its ‘‘open shop’’ or ‘‘non-union’’ members,

with which the Unions had no collective bargaining rela-

tionship, did the Court of Appeals fail to properly weigh

the employers’ interests in the confidentiality of such in-

formation against the Unions’ desire to gain such infor-

mation to police their collective bargaining relationship with

the association’s unionized members, in contravention of

this Court’s holding in Detroit Edison Co. v. NLRB, 440

U.S. 301, 99 S.Ct. 1123 (1979)?

2. Did the Court of Appeals apply a standard of ‘‘pos-

sible’’ relevance, rather than ‘‘probable’’ relevance to the

Unions’ demand for the names and addresses of the non-

union members of a trade association, in contravention of

this Court’s holding in NLRB v. Acme Industrial Co., 385

U.S. 432, 87 S.Ct. 565 (1967)?

3. In ordering the blanket disclosure of the names and

addresses of all open shop members of a trade association,

including those which the Unions did not suspect of being

‘alter egos’’ of unionized firms, did the Court of Appeals

require the association to disclose more information than

was reasonably necessary to enable the Unions to carry out

their role as collective bargaining representatives?

4. In passing upon the validity of the NLRB’s Order

requiring the disclosure of the names and addresses of all

non-union members of a trade association, was the Court

of Appeals obligated to take into account the possible ul-

terior motives of the Unions in requesting this information,

including the Unions’ apparent desire to ‘‘top-down’’

organize all non-union contractors?

5. Did the Court of Appeals fail to properly weigh the

Administrative Law Judge’s contrary findings regarding the

motives of the Unions in seeking the names of non-union

members of the trade associations?

Parties to This Action.

The parties to this action are:

1. Associated General Contractors of California, Inc.,

a nonprofit trade association;

2. The National Labor Relations Board;

3. The 46 Northern California Counties Conference

Board, United Brotherhood of Carpenters and Joiners of

America; and

4. The Northern California District Council of Labor-

ers, Laborers International Union of North America.

ill

TABLE OF CONTENTS

Page

Questions for Review .............c.cccccccccccccececececes. i

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We ge es antew odie mca ude voce lie ata. 4

C. The Development of the Open Membership

RE Cetcate chum aeecea at aot 4

D. Notice to the Unions of Changes in Regular,

Specialty and Joint Venture Members ........ 5

E. The Unions’ Reaction to the Creation of the

Open Shop Membership Category ............ 6

F. The Unions’ Demand for the Names of Open

smop Members Of AGC ......iccccccescecesecess 7

G. The Administrative Law Judge Dismisses the

RE Ri ahira titel setae rte 9

H.. The Board Reverses the Administrative Law

WUE COI origin day asesevks ss cotbissscctacss 10

Reasons the Writ Should Be Granted ................. 10

A. This Case Presents a Troublesome and Poten-

tially Recurrent Problem Not Previously Con-

sidered by This Court .........0........ccccccee. 10

Page

B. The Court of Appeals Failed to Properly

Weigh the Interests of the Open Shop Em-

ployers Against the Interests of the Unions,

in Violation of the Requirements Set Forth in

Detrom Edison Co. v. NLRB . <....4....2.505-..

C. The Court of Appeals Has Ignored the Historic

Distinction Drawn Between Information Con-

cerning Bargaining Unit and Non-Bargaining

RANE UE ctnachke « indivanncctsschaiaieheatas

D. The Court of Appeals and the Board Failed

to Accord Sufficient Weight to the Credibility

Determinations Made by the Administrative

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INDEX TO APPENDICES

Appendix A. Opinion of the Court of Appeals for the

Ninth Circuit.

Appendix B. Order Denying Petitioner’s Petition for

Rehearing.

Appendix C. Decision and Order of the National Labor

Relations Board.

Appendix D. Decision and Order of the Administrative

Law Judge.

Appendix E. Statutes Relevant to This Petition.

TABLE OF AUTHORITIES

Cases Page

Detroit Edison Co. v. NLRB, 440 U.S. 301, 99 S.Ct.

aE » 82, 3, 8

Eastern Engineering v. N.L.R.B., ... F.2d ..., 106

Emme 209? (98 Cir. 1961) ............................. 18

International Telephone & Telegraph Corporation v.

NELRB, 382 F.2d 366 (3d Cir. 1967) .................. 17

Iron Workers v. Flory Constr. Co., 106 LRRM 2380

I sire vansnagrecnacesds. eneceneses. 14

Laborers v. Petersen Pacific, 104 LRRM 2479 (N.D.

EE oe dh Eg 14

N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 87

rr i, 12, 18

N.L.R.B. v. Howell Automatic Machine Co. , 945 F.2d

8 > Sr 18

NLRB v. Rockwell-Standard Corporation, 410 F.2d 953

oo ce cen ccncecaacaacecs.. a3... 17

NLRB v. Western Electric, Inc., 559 F.2d 113] (8th

I Mn iccvscccccccocecmacuescséccoccces.,..... 17

Penasquitos Village, Inc. v. N.L.R.B., 565 F.2d 1074

Eis cicihascecnuvassanecucaates.o., 18

San Diego Newspaper Guild v. NLRB, 548 F.2d 863

Seen csceuancaneans 16, 17

Universal Camera Corp. v. N.L.R.B., 340 U-S. 474,

ee 18, 19

Statutes

National Labor Relations Act, Sec. 8(a)(1) ...... 2,3, 9

Page

National Labor Relations Act, Sec. 8(a)(5) .. 2, 3,9, 15

National Labor Relations Act, Sec. 10(e) ............... 2

United States Code, Title 28, Sec. 1254(1) ............. 2

United States Code, Title 28, Sec. 2101(c) ............. 2

eae

IN THE

Supreme Court of the United States

October Term, 1980

ASSOCIATED GENERAL CONTRACTORS OF CALIFORNIA, INC.,

Petitioner,

VS.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

Petition for Writ of Certiorari

to the United States Court of

Appeals for the Ninth Circuit.

Petitioner Associated General Contractors of California,

Inc. respectfully prays that a Writ of Certiorari issue to

review the Judgment of the United States Court of Appeals

for the Ninth Circuit entered in this proceeding on January

6, 1981.

OPINIONS BELOW.

The Opinion of the Court of Appeals (Appendix A, infra)

is reported at 633 F.2d 766. That Court’s Order denying

petitioner’s Petition for Rehearing with Suggestion for Re-

hearing En Banc (Appendix B, infra) was filed on December

22, 1980, and is not reported. The Decision and Order of

the National Labor Relations Board (Appendix C, infra)

was filed on June 8, 1979 and is reported at 242 NLRB No.

124. The Decision and Order of the Administrative Law

Judge (Appendix D, infra) was filed on April 7, 1978, and

is not officially reported.

Il.

JURISDICTION.

The Opinion of the Court of Appeals for the Ninth Circuit

was filed on October 16, 1980. A timely Petition for Re-

hearing and Suggestion En Banc was filed, and was denied

on December 22, 1980.

The jurisdiction of this Court is invoked pursuant to the

provisions of 28 U.S.C. Sec. 1254(1).

This Petition is timely filed with this Court under the

provisions of 28 U.S.C. Sec. 2101(c).

Il.

STATUTORY PROVISIONS.

The relevant statutory provisions are:

1. National Labor Relations Act, Sec. 10(e);

2. National Labor Relations Act, Sec. 8(a)(1);

3. National Labor Relations Act, Sec. 8(a)(5).

These statutory provisions are reproduced at Appendix

E, infra.

IV.

STATEMENT OF THE CASE.

A. Overview.

This case arises from charges filed with the National

Labor Relations Board by the 46 Northern California Coun-

ties Conference Board, United Brotherhood of Carpenters

and Joiners of America (‘‘the Carpenters Union’’), and the

Northern California District Council of Laborers, Laborers

a a

International Union of North America (‘‘the Laborers

Union’’).'

The charges filed by the Unions allege, generally, that

Associated General Contractors of California, Inc. (“‘AGC’’)

violated Sections 8(a)(1) and 8(a)(5) of the National Labor

Relations Act (*‘the Act’’) by refusing to provide the Unions

with a list of all AGC members, including Open Shop and

Open Shop Specialty members having no collective bar-

gaining relationship with the Unions. The charges were

heard by an Administrative Law Judge in January, 1978.

On April 7, 1978, the Administrative Law Judge issued a

proposed decision dismissing the charges in their entirety.

A three-member panel of the Board subsequently issued

a Decision and Order on June 8, 1979. The Board’s Decision

and Order essentially reverse all of the factual and legal

findings of the Administrative Law Judge. The Decision of

the Board held that AGC violated Sections 8(a)(1) and

8(a)(S) of the Act by refusing to furnish the Unions with

a roster of all members, including Open Shop and Open

Shop Specialty members.” The Board’s Order directed that

AGC furnish such a roster upon request, and provide

periodic supplements.

The Board sought enforcement of its Order in the U.S.

Court of Appeals for the Ninth Circuit.

That Court ordered enforcement of the portion of the

Board's Order requiring the disclosure of AGC’s roster of

Open Shop and Open Shop Specialty members, and denied

enforcement of the Board’s Order insofar as it related to

other membership categories.

‘The Carpenters Union and Laborers Union are hereinafter referred

to collectively as ‘‘the Unions.’’

‘Open Shop and Open Shop Specialty members are those without any

jobsite collective bargaining agreements with any Union.

B. The Parties.

AGC is a non-profit trade association which performs

services for contractors engaged in heavy, highway and

commercial construction. It engages in a variety of activities

designed to create a favorable climate for its members’ work

in the construction industry, and acts as a liaison with var-

ious public and private agencies.

AGC also performs certain labor relations functions for

certain categories of its members. Regular, Specialty and

Joint Venture members of AGC are required, at the time

they become members, to designate AGC as their agent to

negotiate collective bargaining agreements with certain

‘‘basic craft’’ unions,’ including the Laborers Union and

the Carpenters Union.

The Carpenters Union and the Laborers Union have had

a continuous collective bargaining relationship with AGC

and its predecessor entities for over 25 years. The Unions

and AGC have negotiated a series of ‘‘Master Labor Agree-

ments’’ which govern the employment of covered carpentry

personnel in Northern California. The most recent Master

Labor Agreements (separately negotiated with each Union)

are the 1974-1977 and 1977-1980 agreements.

C. The Development of the Open Shop Membership

Category.

™n 1971, as a result of a request from Associated General

Contractors of America, Inc., AGC began exploring the

possibility of creating an ‘‘Open Shop’’ membership cate-

The ‘‘basic craft’’ unions are: (1) United Brotherhood of Carpenters

and Joiners of America; (2) Operative Plasterers and Cement Masons

International Association of the United States and Canada; (3) Inter-

national Brotherhood of Teamsters, Chauffeurs, Warehousemen and

Helpers of America; (4) International Association of Bridge, Structural

and Ornamental Lronworkers; (5) International Union of ing En-

gineers; and (6) Laborers International Union of North America.

gory. There was an apparent national growth of interest in

open shop construction, and it was felt that AGC would be

depriving some portion of the construction community of

its services were it to decline to accept open shop contractors

as members. It would also lose the dues revenue to be

derived from open shop members to competing associations.

In April, 1971, the Board of Directors of AGC passed

a resolution approving the creation of a new category of

membership for Open Shop members. This resolution was

subsequently approved by a plebiscite of AGC members.

The Bylaws of AGC were amended to provide for this

new membership category. In order to qualify for Open

Shop Membership, each prospective member was required

to have no active collective bargaining agreements covering

jobsite employees with any construction union. The Bylaws

provided that Open Shop members would not confer any

collective bargaining authority upon AGC to act in their

behalf, and would not become bound to the Master Labor

Agreements with the six basic construction crafts.

AGC also created an ‘‘Open Shop Specialty’’ member-

ship category, consisting of subcontractors and specialty

contractors other than general contractors. Like Open Shop

members, the Open Shop Specialty members confer no col-

lective bargaining authority upon AGC, and are not bound

to the Master Labor Agreements by virtue of their mem-

bership in AGC.

No Regular, Specialty or Joint Venture member of AGC

may become an Open Shop or Open Shop Specialty member

during the life of the Master Labor Agreements.

D. Notice to the Unions of Changes in Regular, Spe-

cialty and Joint Venture Members.

AGC responds to inquiries from the Unions regarding its

Regular, Specialty and Joint Venture members. The Unions

—b—

are automatically notified of additions and deletions in the

membership categories which AGC represents for coller tive

bargaining purposes, and of pending applications for Reg-

ular and Specialty Membership; the Unions are also notified

of resignations and expulsions and changes of name or style.

E. The Unions’ Reaction to the Creation of the Open

Shop Membership Category.

The Unions made it clear, at the hearing before the Ad-

ministrative Law Judge, that they are totally opposed to

AGC’s acceptance of Open Shop members. Mr. Van Bourg,

the attorney for both the Carpenters and Laborers, testified

that during a discussion with representatives of AGC in

1977 be had *‘clearly stated that the Open Shop impetus of

the AGC was something the Unions could not live with

. I advised them I felt their Open Shop impetus was, in

my opinion, a violation of the law, an unfair labor prac-

ice.”** Mr. Van Bourg also stated that, in his opinion:

‘“They have a conflict of interest. It is a clear-cut legal

conflict of interest.”’

The Unions have taken a number of steps to attempt to

discourage AGC from permitting Open Shop Membership.

In February, 1975, Van Bourg filed a lawsuit in the U_S.

District Court for the Northern District of California on

behalf of the Carpenters Union naming AGC and a large

number of its members as defendants, and charging them

with encouraging open shop operation in alleged violation

of federal and California antitrust laws.

The Unions have also sent uninvited representatives to

listen in On seminars given by AGC for its members re-

garding open shop operation. Mr. Null, a representative of

the Carpenters Union, testified that the Carpenters have

“No legal authority has ever been cited by the Unions for this assertion

—

demanded that AGC stop giving such seminars. He also

testified that he told Union attorney Van Bourg to try to

stop the promulgation of an apprenticeship program to train

apprentices to be used by open shop contractors. Finally,

Mr. Null testified that Mr. Van Bourg was instructed to try

to obtain language in the Master Labor Agreements which

would automatically bind every contractor joining AGC to

the Master Labor Agreements, thus making it impossible

for any open shop member to join AGC without forfeiting

non-unic. status.°

F. The Unions’ Demand for the Names of Open Shop

Members of AGC.

In late 1976 and early 1977, Union attorney Van Bourg

sent three letters to the AGC demanding a list of all AGC

members, assertedly for use by the Laborers and Carpenters

in forthcoming collective bargaining negotiations.° Subse-

quently, in early 1977, Van Bourg met with Richard Munn

of AGC to discuss the negotiations to be held that year. He

again requested a full roster of all AGC members, including

the Open Shop members. Mr. Munn declined to furnish a

list of the Open Shop and Open Shop Specialty members.’

_—_————

‘The Unions’ great concern with the growth of open shop construction

contracting is central to this case, since the critical ‘esue before the

Court is whether the Unions’ demand for the names of AGC’s open

shop members is made to assist the Unions in their role as collective

bargaining representatives, or whether its purpose is to obtain infor-

mation to assist the Unions in attacking open shop construction

contractors generally.

*Significantly, negotiations were completed in 1977, to the apparent

satisfaction of the parties, without benefit of a list of Open Shop mem-

bers.

‘It should be noted that Mr. Van Bourg’s request for a ‘‘full roster’’

was simply a euphemistic way of saying he wished the names of the

Open Shop and Open Shop Specialty members. The Unions have never

expressed any serious interest in the identities of the Affiliate and Hon-

orary members of AGC.

a een

At various times, the Unions have advanced the following

reasons for wishing a list of the Open Shop and Open Shop

Specialty members:

(a) The Unions claim the list is necessary in order to

‘‘enforce the Master Labor Agreement.’’ However, no spe-

cific violations of the Master Labor Agreements were dem-

onstrated in the proceedings below; nor has any explanation

been given of how the roster of members not bound to the

Master Labor Agreement would assist in the Agreement’s

enforcement.

(b) Mr. Van Bourg has stated that he is afraid of ‘‘run-

away contractors’’ who might ‘‘transfer’’ from Regular

Membership in AGC to Open Shop Membership. No in-

stances of such ‘‘transfers’’ were shown in the proceedings

below. *‘Transfers’’ to open shop status are not permitted

during the term of the Master Labor Agreements.

tractors may change their names, or operate under more

than one license. No members of AGC who had done this

have been identified in these proceedings.

(d) The Unions have also expressed concern about so-

called ‘‘double-breasted’’ construction operations.” Of course,

‘‘double-breasted’’ operation is not, in itself, illegal; as the

Board itself has found, the mere existence of common ele-

ments of ownership does not mean that the ‘‘open shop’’

business is bound to follow the labor practices of the

‘‘union’’ business. (See Frank N. Smith Associates, 194

N.L.R.B. 212 (1971).)

*The term ‘‘double-breasted’’ operation is loosely used to refer to

two businesses which have some elements of common ownership, but

which have different labor relations programs. (Generally, one business

is ‘“‘union’’ while the other business is ‘‘open shop.’’)

snilliinité

G. The Administrative Law Judge Dismisses the Com-

plaint.

The Administrative Law Judge found that AGC’s decision

not to furnish a list of its Open Shop and Open Shop Spe-

cialty members to the Unions did not constitute a violation

of Sections 8(a)(5) and 8(a)(1) of the Act. He held that

‘‘both Carpenters and Laborers are essentially unimpeded

in their function as parties to construction industry contracts

that relate only to Respondents’ major traditional arm [the

Regular, Specialty and Joint Venture members] .. . . In

the last analysis, the case becomes one of whether non-

union construction firms may purchase the administrative

and promotional services of an industry support mechanism

[AGC] without further entanglements stemming from a sep-

arately existing labor relations function. I believe a negative

answer would overreach to the detriment of basic Section

7 rights as preserved to employees.’’ (Appendix ‘‘D,”’

infra.)

The Administrative Law Judge found that mere mem-

bership in AGC did not constitute a basis for disclosure of

the names of Open Shop members:

‘“The essential vice in General Counsel’s case here is

that Open Shop members are specifically not bound

to contracts, nor are they within the intendment of a

membership listing when done expressly not for col-

lective bargaining purposes. It would distort common

meaning of Association bargaining practices were the

Open Shop firms to be considered to be within the

Laborers’ bargaining unit when a sophisticated agency

relationship is rooted just oppositely.”’ (Appendix

““D,”’ infra.)

The Administrative Law Judge apparently believed the

Unions sought the list of Open Shop members to assist them

a ee

in combating the Open Shop movement generally, rather

than in policing the existing collective bargaining agree-

ments.

H. The Board Reverses the Administrative Law Judge’s

Decision.

The Board reversed the determination of the Administra-

tive Law Judge, finding that the Unions were entitled to

‘“Respondent’s full membership roster, including the por-

tion which contains the names and addresses of its Open

Shop and Open Shop Specialty members.”’

The Board held that ‘‘there was no justification for the

Administrative Law Judge’s conjecture that the Unions’

underlying purpose was to facilitate the organizing of non-

union companies.’’ Moreover, the Board held that even if

the information might be used for such purposes, it made

no difference if the Unions’ request for information was

also ‘‘for a proper and legitimate purpose.’’ (Appendix

“*C,”” infra.)

REASONS THE WRIT SHOULD BE GRANTED.

A. This Case Presents a Troublesome and Potentially

Recurrent Problem Not Previously Considered by

This Court,

In the last ten years, there has been a substantial increase

in the amount of ‘‘open shop’’ construction work performed

in the United States, due largely to the dramatic rise in the

wages and benefits paid to unionized construction workers.

The Administrative Law Judge who heard this case took

judicial notice that 35 percent of the members of Associated

General Contractors of America (AGC’s parent organiza-

tion) operate on an open shop basis. The Administrative

Law Judge’s Opinion cites evidence that open shop con-

a ae

struction now constitutes a ‘‘majority of all construction in

the U.S.”’ (Appendix ‘‘D,’’ infra).

Because of the dramatic increase in open shop construc-

tion, many trade associations which collectively bargain on

behalf of their unionized members now permit open shop

contractors to join, without requiring such contractors to

confer collective bargaining authority upon the trade asso-

ciation they are joining.

The presence of open shop construction contractors in

such trade associations has given rise to a new and trou-

blesome problem in labor relations. Each such association

which acts as a collective bargaining representative of its

unionized members is, without doubt, obligated to furnish

the unions with which it collectively bargains with the

names, addresses, and other relevant information concern-

ing the unionized contractors on whose behalf it bargains.

The presence of open shop contractors within such asso-

ciations has given rise to demands that the trade associations

reveal information about their non-union members, as well.

There is a substantial risk that unions will utilize their

collective bargaining relationship with trade associations as

a lever to obtain information about the non-union members

of such associations. That is what has happened in this case.

In the proceedings below, the Unions insisted that they

wished to obtain the names of all open shop members of

AGC in order to assist them in policing their collective

bargaining agreements. However, no concrete explanation

of how such information would assist the Unions in policing

the collective bargaining agreements was given.

AGC has indicated that it will produce relevant infor-

mation about particular ‘‘open shop’’ members where there

is some reasonable indication that such members are ‘‘alter

egos’’ or improper ‘‘double-breasts’’ of unionized compa-

nies. But the blanket disclosure of the names and addresses

of all non-union members of AGC, as ordered by the NLRB

and the Court of Appeals, creates a substantial risk that the

open shop membership list will simply be used by the

Unions as an organizational tool to attack all of AGC’s open

shop members.

AGC concedes that it has an obligation to furnish the

Unions with information necessary to performance of their

role as collective bargaining representative of employees of

AGC’s unionizec inembers. N.L.R.B. v. Acme Industrial

Co., 385 U.S. 432, 87 S.Ct. 565 (1967); Detroit Edison

Co. v. N.L.R.B., 440 U.S. 301, 99 S.Ct. 1123 (1979).

But AGC has no obligation to act as an involuntary, ad

hoc source of reference to fuel the Unions’ endeavors to

organize open shop contractors.

If the Opinion of the Court of Appeals is permitted to

stand, every trade association containing both open shop

and unionized members may find itself acting as an invol-

untary tool for the Unions’ organizational efforts.

The ultimate result will be to force open shop contractors

out of the membership ranks of industry-wide associations

such as AGC, depriving these members of the non-collective

bargaining services such associations perform. It will also

deprive the associations of much-needed revenue, forcing

them to raise the dues of their unionized members, thereby

increasing costs in the unionized sector of the construction

industry.

B. The Court of Appeals Failed to Properly Weigh the

Interests of the Open Shop Employers Against the

Interests of the Unions, in Violation of the Require-

ments Set Forth in Detroit Edison Co. v. NLRB.

In Detroit Edison Co. v. NLRB, 440 U.S. 301, 99 S.Ct.

1123 (1979), this Court reversed and remanded a Sixth

a |

Circuit Court of Appeals decision, which had enforced an

order of the National Labor Relations Board requiring an

employer to supply a union with certain information per-

taining to an employee aptitude testing program. The Court

held that the Board’s order failed to adequately take account

of the interests of individual employees in the confidentiality

of their test scores, and the interest of the company in the

confidentiality of the test battery.

Similarly, in the present action, the Court of Appeals has

uncritically accepted the Unions’ vague explanation of why

it wishes a list of all open shop members of AGC, while

failing to weigh the reasons advanced by AGC for keeping

such information confidential.

The Court of Appeals noted, with apparent approval, five

‘‘reasons’’ cited by the Unions for requiring AGC to furnish

a roster of its open shop members. These are as follows:

(1) To ‘‘monitor name changes pursuant to the contract

provisions.’’ 633 F.2d at 769. The record in this case is

barren of any indication that any AGC member ever changed

its name as a way of avoiding obligations under collective

bargaining agreements. Neither the Court of Appeals nor

the Board noted any instance of such a name change by an

AGC member.

(2) To ‘identify employer transfer from one membership

Classification to another.’’ 633 F.2d at 769. Again, there

is nothing in the record, and the Court of Appeals and the

Board cite no evidence, that any AGC member has ever

transferred from one membership classification to another.

(3) To ‘enforce their [the Unions’] position that all AGC

members were bound to the Laborers contract.’’ 633 F.2d

at 769. As the Court of Appeals noted, open shop members

do not delegate any collective bargaining authority to AGC.

633 F.2d at 769. How, then, can the Unions (and the Court

po”

of Appeals) seriously maintain that open shop members of

AGC can be bound to collective bargaining agreements

AGC negotiates with the Unions?

(4) To ‘‘facilitate bargaining by identifying who AGC

represented.’’ 633 F.2d at 769. It is impossible to accord

credence to this ‘‘reason,’’ since uncontradicted testimony

established that AGC tendered a list of those contractors it

was authorized to represent at the commencement of each

collective bargaining session with each Union.

(5) To ‘‘police and enforce the contracts.’’ 633 F.2d at

769. Again, there is nothing in the record to explain how

a list of AGC members not bound by the contracts will assist

the Unions in enforcing contracts against AGC members

who are bound.

In contrast to the vague reasons advanced by the Unions

for requesting AGC’s roster of open shop members, AGC

and its open shop members have concrete and substantial

reasons for protecting the confidentiality of the roster.

Disclosure of the roster will surely subject open shop

members to intensive union organizational activity. More-

over, the basic craft unions have already launched four

lawsuits against open shop members of AGC, in each case

asserting that the open shop members are bound to AGC’s

Master Labor Agreements with the Unions. In each of these

cases, the Unions have been denied relief by the District

Courts.’ Nevertheless, the time and expense involved in

preparing responses to such meritless lawsuits has an un-

deniable dampening effect upon the interest of open shop

contractors in joining AGC.

*These decisions are not officially reported. Two of the cases are

unofficially reported: /ron Workers v. Flory Constr. Co., 106 LRRM

2380 (N.D. Cal. 1980); Laborers v. Petersen Pacific, 104 LRRM 2479

(N.D. Cal. 1980).

In the Detroit Edison decision, this Court made it clear

that the Circuit Courts of Appeal were not to act as a *“pas-

sive conduit’’ for the enforcement of the Board’s orders.

This Court there held that ‘‘the duty to supply information

under Section 8(a)(5) ‘turns upon the circumstances of the

particular case’ NLRB v. Truitt Mfg. Co., 351 U.S. 149,

153, 76 S.Ct. 753, 756, 100 L.Ed.2d 1027, and much the

same can be said for the type of disclosure that will Satisfy

that duty.’’

In Detroit Edison, this Court held that the ‘‘arguable

relevance’’ of information requested by the union is not the

only consideration to be taken into account: ‘‘The Board’s

position appears to rest on the proposition that union inter-

ests in arguably relevant information must always predom-

inate over all other interests, however legitimate. But such

an absolute rule has never been established, and we decline

to adopt such a rule here.’’ Detroit Edison Co. v. N.L.R.B.,

supra, 99 S.Ct. at 1133.

Flying in the face of this holding, the Board held the

Unions’ request for information, if relevant, must be hon-

ored even if the information might be used for improper

purposes.

In the present action, had the Unions had any serious

interest in unearthing specific contract violations, they could

have requested information about those contractors they felt

were possible contract violators. But no such contractors

were identified. Similarly, the Board and the Court of Ap-

peals could have accommodated the Unions’ interest in ex-

posing contract violators by fashioning an order which

would require the disclosure of information about such sus-

pect entities. Instead, the Board’s Order, enforced by the

Court of Appeals, requires the disclosure of the names and

addresses of all open shop contractors, regardless of whether

the Unions have any grounds to believe they are operating

improperly. If this Order is upheld, any non-union con-

tractor who joins AGC will, simply as a result of becoming

a member of AGC, be subjected to union scrutiny.

C. The Court of Appeals Has Ignored the Historic

Distinction Drawn Between Information Concern-

ing Bargaining Unit and Non-Bargaining Unit

Members.

In determining the scope of information which is relevant

to the Unions’ function as collective bargaining represen-

tatives of their members, the Courts of Appeal have drawn

a sharp distinction between requests for information directly

pertaining to those within the bargaining unit and requests

for information about those outside the unit. The rule ap-

pears to be that ‘‘certain types of information, such as wage

data pertaining to employees in the unit, are so intrinsic to

the core of the employer-employee relationship that such

information is considered presumptively relevant.’’ San

Diego Newspaper Guild v. NLRB, 548 F.2d 863, 868 (9th

Cir. 1977). Conversely, ‘‘where the request is for infor-

mation concerning employees outside of the bargaining unit,

the union must show that the information requested is rel-

evant to bargainable issues.’’ San Diego Newspaper Guild

v. NLRB, supra.

Where the information requested relates to non-unit par-

ties, a demonstration of ‘‘abstract, potential relevance’’ of

the information requested is not sufficient. ‘‘When the union

asks for information which is not presumptively relevant,

the showing by the union must be more than a mere con-

coction of some general theory which explains how the

information would be useful to the union in determining if

the employer has committed some unknown contract vio-

lation.’’ San Diego Newspaper Guild v. NLRB, supra, 548

F.2d at 868. The Union must make some ‘“‘initial, but not

i. =

overwhelming, demonstration’’ that a contract violation

“is or has been taking place.’’ San Diego Newspaper Guild

v. NLRB, supra.

The distinction between information regarding unit and

non-unit personnel has been recognized by several circuits.

See, e.g., International Telephone & Telegraph Corpora-

tion v. NLRB, 382 F.2d 366, 372 (3d Cir. 1967); NLRB y.

Western Electric, Inc., 559 F.2d 113] (8th Cir. 1977);

NLRB v. Rockwell-Standard Corporation, 410 F.2d 953,

957 (6th Cir. 1969).

As we have previously noted, the Unions presented no

evidence to show that actual contract violations were taking

place in the proceedings below, nor were they able to pin-

point specific instances of possible contract violations.

Fairly viewed, the most that was demonstrated by the ev-

idence offered by the Unions was that some unidentified

member or members of AGC might be committing a contract

violation in some unexplained manner. This is the type of

generalized ‘‘suspicion or surmise’? which was condemned

in the Ninth Circuit’s own San Diego Newspaper Guild

decision. No Court of Appeals opinion, prior to this one,

appears to have supported the requirement that information

be disclosed about non-bargaining unit entities on a showing

as flimsy as that proffered in the present case.

Moreover, neither the Court of Appeals, the Board, nor

the Unions were ever able to explain how a bare list of the

names and addresses of open shop members of AGC would

enable the Unions to discover any specific collective bar-

gaining agreement violations. The Order requiring the dis-

closure of this list will equip the Unions with a list of non-

bargaining unit contractors who may have no greater rela-

tionship with their unionized contractor brethren than the

mere fact that they belong to the same trade association.

In NLRB v. Acme Industrial Co., 385 U.S. 432, 87 S.Ct.

565 (1967), this Court held that a ‘‘discovery type standard’’

could appropriately be employed to determine what infor-

mation was relevant to the Unions’ role as collective bar-

gaining agent. However, the Court appeared to indicate that

a mere possibility of relevance was not sufficient; there must

be a ‘‘probability that the desired information was relevant,

and that it would be of use to the Union in carrying out its

statutory duties and responsibilities."’ NLRB v. Acme In-

dustrial Co., supra, 385 U.S. at 437. (Emphasis supplied.)

No such showing has been made in this case. In contra-

vention of this Court’s holding in Acme Industrial Co. the

record below cannot be honestly characterized as demon-

strating that there is a probability that the disclosure of a

roster of AGC open shop members will be of use to the

Unions in representing employees of AGC’s unionized

members.

D. The Court of Appeals and the Board Failed to Ac-

cord Sufficient Weight to the Credibility Determi-

nations Made by the Administrative Law Judge.

There are numerous cases in which the Courts of Appeal

have reflected upon the difficult situation which arises when

the Board rejects findings of a trial examiner, based upon

his impression of the credibility of the witnesses. See, e.g.,

Penasquitos Village, Inc. v. N.L.R.B., 565 F.2d 1074, 1078

(9th Cir. 1977); Ward v. N.L.R.B., 462 F.2d 8, 12 (Sth Cir.

1972); N.L.R.B. v. Howell Automatic Machine Co., 545

F.2d 1077, 1079 (6th Cir. 1972); Eastern Engineering v.

N.L.R.B., .... F.2d ...., 106 LRRM 2097 (3d Cir. 1981).

Following the direction of this Court in Universal Camera

Corp. v. N.L.R.B., 340 U.S. 474, 496, 71 S.Ct. 456 (1951),

these cases generally accord the implicit or explicit credi-

bility determinations made by an Administrative Law Judge

— =

significant weight with regard to factual issues in dispute

in the case.

The entire focus of this case is on the motives of the

Unions in seeking the roster of AGC’s open shop members.

Although the Administrative Law Judge did not make ex-

plicit findings regarding the credibility of each separate

witness who testified, it is quite clear that he believed the

Unions were seeking AGC’s open shop roster to further

their goal of organizing open shop contractors, rather than

to represent unionized employees of contractors within the

collective bargaining unit. In his Opinion, the Administra-

tive Law Judge stated: ‘‘While disclosure of the open shop

roster could well assist these charging parties, plus their

higher affiliates, in research and strategy planning [to or-

ganize open shop contractors] it cannot be said they have

that entitlement under [the] doctrine of whether certain in-

formation is relevant and necessary to fulfillment of a rep-

resentational role. To grant this would smack of partici-

pating in the notorious ‘top down’ mode of organizing

employees. . . . In the last analysis, the case becomes one

of whether non-union construction firms may purchase the

administrative and promotional services of an industry sup-

port mechanism, without further entanglements stemming

from a separately existing labor relations function. I believe

a negative answer would overreach to the detriment of basic

Section 7 rights as preserved to employees.’’ (Appendix

“*D,”” infra.)

The Board rejected the Administrative Law Judge’s con-

clusions on the ground that they were ‘‘largely the product

of speculation and conjecture, for the record of the hearing

herein reflects no substantial evidence in support thereof.”’

The magnitude of this misstatement can only be appreciated

when one considers that Messrs. Van Bourg and Null all

= “=

but admitted in thew testimony that their purpose was to

Stamp out open shop construction contracting in California.

The Board and the Court of Appeals sought to justify the

Board’s refusal to adhere to the credibility findings of the

Administrative Law Judge by asserting that the Board's

Opinion rested on ‘‘derivative inferences’’ drawn from its

‘“broad experience and expertise."’ 633 F.2d at 772. We

submit that this mischaracterizes the Board’s treatment of

the record. The Board has simply elected, contrary to the

Administrative Law Judge, to believe all of the flimsy

‘‘reasons’’ that Messrs. Van Bourg and Null advanced for

needing the names of open shop members of AGC. There

is nothing in the Decision and Order of the Board, or the

Opinion of the Court of Appeals, to explain why they chose

to accord credence to the Unions’ asserted motives, when

the Administrative Law Judge obviously found the testi-

mony regarding these motives wanting in credibility.

E. Conclusion.

For the reasons set forth herein, the Petition for Wnt of

Certiorari should be granted.

Respectfully submitted,

Cox, CASTLE & NICHOLSON,

JAMES P. WATSON,

Attorneys for Petitioner,

Associated General Contractors

of California, Inc.

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL LABOR RELATIONS

BOARD,

Petitioner, No. 79-7484

Vs.

ASSOCIATED GENERAL

CONTRACTORS OF

CALIFORNIA, INC.,

OPINION

Respondent,

and

46 NORTHERN CALIFORNIA

COUNTIES CONFERENCE

BOARD, UNITED BROTHER-

HOOD OF CARPENTERS AND

JOINERS OF AMERICA,

AFL-CIO,

and

NORTHERN CALIFORNIA

DISTRICT COUNCIL OF

LABORERS, LABORERS '

INTERNATIONAL UNION

OF NORTH AMERICA,

AFL-CIO,

Intervenors.

— ee Ne eee ee ee ee a ae ae we a a es a a wee ee wee ws wes ws ws es we

On Application for Enforcement of an Order

of the National Labor Relations Board

Argued and Submitted September 9, 1980

Betore: WRIGHT and POOLE, Circuit

Judges, and BROWN, Senior

District Judge*

WRIGHT, Circuit Judge:

The National Labor Relations

Board ordered a multi-employer bargaining

agent to furnish a complete roster of its

members to two unions.? The issue is

whether a refusal to disclose the roster

was a failure to bargain in good faith.

We modify the Board's order, and enforce

it as modified.

Associated General Contractors

of California (AGC) is a trade associa-

*Of the District of Kansas.

1542 NLRB No. 124 (June 8,

1979).

tion performing various services for its

member contractors. Prior to 1971, it

had five membership classifications:

Regular, Specialty, Joint Venture,

Affiliate, and Honorary. Purine

to AGC's Bylaws, only the Regular,

Specialty, and Joint Venture members

conferred authority on AGC to engage

in collective bargaining and enter into

collective-bargaining agreements on their

behalf.

In 1971 AGC added an Open Shop

classification. Under AGC's amended

Bylaws, a contractor may not be admitted

as an Open Shop member if it is subject

to itil existing collective bargaining

agreement. Open Shop members give no

collective bargaining authority to

AGC.

In 1976 AGC added an Open Shop

Specialty classification, under terms

Similar to those applicable to the Open

Shop classification.

The Carpenters' Union? and

the Laborers' Union? have engaged in

collective bargaining with AGC since

1942. Each union entered into a three-

year Master Agreement with AGC in

1974.

The Carpenters' contract bound

every Regular, Specialty, and Joint

Venture member of AGC. The Laborers'

contract was unclear as to which employ-

ers it purported to cover. The unions

: 246 California Counties

Carpenters Conference Board, United

Brotherhood of Carpenters & Joiners of

North America, AFL-CIO.

3Northern California District

Council of Laborers, Laborers' Inter-

national Union of North America, AFL-CIO.

contend it bound all AGC members. AGC

argues only Regular, Specialty and Joint

Venture members were covered. The Board

did not decide the issue. We assume,

without deciding, that Open Shop and

Open Shop Specialty members were not

bound solely by virtue of their AGC

membership. @

Both contracts contained

provisions binding employers regardless

of changes in the name, style, or address

of their businesses.

Following negotiation of the

1974 contracts, AGC sponsored seminars on

the operation of open shops, including

methods of converting from union to

47 such members were bound

under the terms of the agreements, a

roster of their names and addresses

clearly would be relevant to the unions'

duties. See Part IIA, infra.

open shops, and of operating both

union and open shops (double-breasted

construction).

The union became concerned

about the growing wee 62 epen shop

contractors. AGC's open shop membership

increased from 10 in 1974 to 60 in 1978.

Employer contributions to union trust

funds decreased, despite industry-wide

increases in construction volume and

employment.

The unions believed AGC members

subject to the collective-bargaining

agreements (approximately 550) would

transfer classifications or establish a

second, open shop operation. They set up

an elaborate system to check the identi-

ties of newly licensed firms. They have

identified one California contractor (not

an AGC member, however) which changed its

a§q

name 18 times in nine months.

They have pointed to three

instances in which an AGC member bound by

the Master Agreement shared common

Ownership with an open-shop contractor.

In at least one of those cases, however,

the Regional biieetec of the Board has

determined the open shop contractor was

not the "alter ego" of the union shop

contractor and, thus, not subject to the

Master Agreement.

As the end of the 1974 con-

tracts neared, the Carpenters requested a

roster of AGC's entire membership.

Subsequently, both unions made this

request, asserting they needed the

full roster in order to: (1) monitor

name changes pursuant to the contract

provisions; (2) identify employer

transfer from one membership classifi-

~ =

cation to another; (3) enforce their

position that all AGC members were

bound by the Laborers' contract; (4)

facilitate bargaining by identifying who

AGC represented; and (5) police and

enforce the contracts.

AGC regularly provides the

unions with rosters of its Regular,

Specialty, and Joint Venture members, and

updates those rosters from time to time.

It refused, howev2r, to provide a

full membership roster.

The unions filed charges with

the Board in January of 1977, alleging

AGC had failed to bargain in good faith.

They also entered into new three-year

Master Agreements with AGC, containing

the same provisions as the 1974 agree-

ments on name and style changes and on

employer coverage.

After a hearing, an Adminis-

trative Law Judge dismissed the charges.

He found the "basic failing" in the

unions' position to be the absence of

language in the collective-bargaining

agreements identifying the employers that

are covered. He apparently felt the

reason the unions wanted the roster was

to engage in "the notorious top down mode

of organizing" open shop employees. He

did not, however, make explicit findings

of fact or conclusions of law.

The Board found the full roster

relevant to the unions' performance of

their statutory duties. The full roster

was necessary to enable the unions to

investigate the possibility of unlawful

breasted construction, to assess the

advisability of initiating grievances or

taking other remedial action, and to

formulate contract proposals regarding

employers to be covered by the Master

Agreements.

The legal principles which

govern this case are well settled. The

duty to bargain in good faith, imposed by

§8(a)(5) of the National Labor Relations

Act (NLRA), 29 U.S.C. §158(a)(5) (1976),

may be violated by an employer's refusal

to furnish information relevant to the

union's negotiation or administration

of a collective-bargaining agreement.

Detroit Edison Co. v. NLRB, 440 U.S. 301,

303 (1979); NLRB v. Acme Industrial Co.,

385 U.S. 432, 435-36 (1967); NLRB v.

Truitt Manufacturing Co., 35l U.S.

149, 152 (1956).

Information relevant to the

=i@=

filing or processing of grievances is

relevant to contract administration.

Acme Industrial Co., 385 U.S. at 436-38,

NLRB v. Goodyear Aerospace Corp.,

388 F.2d 673 (6th Cir. 1968).

Whether there has been a

violation turns upon the facts of the

case. Truitt, 352 U.S. at 153-54; Shell

Oil Co. v. NLRB, 457 F.2d 615, 618 (9th

Cir. 1972). See Cox, The Duty to

Bargain in Good Faith, 71 Harv. L. Rev.

1401 (1958).

Although only relevant infor-

mation must be disclosed, a refusal to

disclose even relevant information is not

always a §8(a)(5) violation. Emeryville

Research Center vy. NLRB, 441 F.2d 880,

885 (9th Cir. 1971) (problem is one of

accommodating competing interests); Shell

Oil, 457 F.2d at 618. See Gorman,

alia

Basic Text on Labor Law, 417-18 (1977).

The employer's reasons for nondisclosure

and the negotiating conduct of the

parties must be considered. See Shell

Oil, 457 F.2d at 618.

The threshold question is

whether the information sought is

relevant to the unions' duties. The

Board and the courts have employed a

liberal, discovery-type standard of what

constitutes relevant information. Acme

Industrial Co., 385 U.S. at 437; San

Diego Newspaper Guild v. NLRB, 548 F.2d

863, 867 (9th Cir. 1977).

The Board's determination on

this issue is given great weight, either

because it in a finding of fact, which is

conclusive if supported by substantial

evidence, or because it is a finding on a

a2 De

mixed question of law and fact which is

within the expertise of the Board. San

Diego Newspaper Guild, 548 F.2d at

867.

The information sought by the-

unions does not fall within the category

of information that is presumptively

relevant ?2 and thus, the unions had the

initial burden to show relevancy. San_

Diego Newspaper Guild, 548 F.2d at

867-68. They introduced evidence estab-

lishing an increase in the number of

open shop contractors, AGC sponsorship of

seminars instructing contractors on

conversion from union to open shops, and

48 nformation directly

relating to unit employees (e.g., wages,

related financial benefits) is deemed

presumptively relevant, and the employer

has the initial burden to rebut that

presumption. See San Diego Newspaper

Guild, 548 F.2d at 867-68.

«) 3=

common ownership of some union and open

shop contractors.

Two or more employers, if they

are "alter egos," may be treated as a

Single employer under the NLRA. If one

is subject to a collective-bargaining

agreement, the others will be bound by

it. See NLRB v. Don Burgess Construction

cert. denied, 444 U.S. 940 (1979).

AGC emphasizes that common ownership

alone will not bind the open shop

employers. See id. at 384 (common

ownership one of four factors con-

sidered) .> Under the facts of this

>The open shop employers may

be bound by operation of the change of

name and style provisions in the Master

Agreements. Although we need not decide

(Footnote continued)

adit»

case, however, the unions have met their

initial burden by showing that the

information sought is relevant to

investigations of contract violations,

and that there is a reasonable basis for

further investigation. °

(Footnote 5 continued)

not be the same as that applied under the

Act to determine whether an open shop

contractor is bound.

On reasonable basis for

further investigation is sufficient

under a discovery standard. Cf. Fed.

R. Civ. P. 26(b) (1) (discoverable

information need only appear "reasonably

calculated to lead to the discovery of

admissible evidence"). A major purpose

of the labor laws is to promote peaceful

resolution of labor disputes, and it

furthers that purpose to permit unions to

have access to information needed to

investigate alleged violations prior

to initiating full-scale grievance

proceedings. Acme Industrial Co., 385

U.S. at 437-39; P.R. Mallory & Co. v.

NLRB, 411 F.2d 948, 954-56 (7th Cir.

1969).

(Footnote continued)

«iS

(Footnote 6 continued)

AGC relies on our decision in

San Diego Newspaper Guild v. NLRB, 548

F.2d 863 (9th Cir. 1977), in which case

the Board determined the employer had not

failed to bargain in good faith when it

refused to provide information concerning

its training of persons to perform

bargaining unit tasks in the event of a

strike. We held:

the showing by the

union must be more than

a mere concoction of

some general theory

which explains how the

information would be

useful to the union in

determining if the

“ employer has committed

some unknown contract

violation. Id. at

868. Naar lial

We noted, however, that to require an

initial, burdensome showing would

frustrate the purposes of the liberal

discovery standard. Id. at 868-69. We

emphasized that great weight should be

given the Board's determination. Id. at

869.

We reach a different result

here, as did the Board, because the cases

are factually distinguishable. In

upholding the Board's decision, the San

(Footnote continued)

wie

AGC makes three arguments to

rebut this showing: first, no actual

violations have been established; second,

the roster will not aid the unions in

uncovering contract violations; and

third, the unions really want the roster

in order to engage in Organizational

activities.

(Footnote 6 continued)

Diego court referred to five factors.

Id. The union had introduced no evidence

to support its claim that contract

violations might be taking place, and

failed to contradict the employer's

testimony to the contrary. It failed to

show it had taken steps to investigate

possible violations. Its Suspicion had

"been shown by the record before the

Board to be totally unfounded." Id.

Here, the unions have shown an

objective basis for their Suspicions.

They have provided concrete examples,

and they have taken other steps to

investigate possible violations.

Clearly, the record before the Board did

not show their suspicions to be "totally.

unfounded."

The first argument misconstrues

the standard to be applied. It is

sufficient that the information sought is

relevant to possible violations where the

union has established a reasonable basis

to suspect such violations have occurred.

Actual violations need not be established

in order to show relevancy. See Acme

Industrial Co., 385 U.S. at 437-39; P.R.

Mallory & Co. v. NLRB, 411 F.2d 948, 954

(7th Cir. 1969).

The second argument concerns

the usefulness of the rosters. If

employers subject to the agreements are

operating open shops under different

names and addresses, AGC argues, the

rosters will be of no assistance in

identifying them. Moreover, several

factors must be considered to determine

whether an open shop contractor is the

"alter ego" of a union shop and thus

bound by the agreement. AGC argues

the roster will not aid materially in

evaluating those factors.

Again, however, AGC seeks

to impose an excessively stringent

Standard. it is not essential that

the information fully resolve the ques-

tion whether a contract violation has

occurred. The roster would enable the

unions to investigate specific Open Shop

members rather than having to examine

all 550 Regular, Specialty, or Joint

Venture members, or all newly licensed

contractors. It is sufficient under a

liberal discovery standard that the

roster would aid in the unions' investi-

gation of contract violations.

Third, the potential use of the

roster for organizational purposes does

-]9=

not make it irrelevant to the unions'

duties in administering the contract.

AGC cites NLRB v. A.S. Abell Co., 104

L.R.R.M. 2761 (4th Cir. 1980), which held

an employer's showing of prior misuse

of requested information rebuts a

presumption of relevance. The court

also held, however, that the information

could be obtained if the union, as

here, made an affirmative showing of

relevance. ’

Moreover, there has been no

showing of prior misuse here. Although

we give some consideration to the

ALJ's "finding" that the unions were

interested in "top down" organizing,

‘the union presented nothing

more than a "bare assertion" that it

needed the information. 104 L.R.R.M. at

2765.

a2a

substantial evidence on the record as a

whole supports the Board's findings of

relevance.®

As noted, failure to disclose

relevant information is not necessarily a

failure to bargain in good faith.

Several factors have been urged by AGC

and Amicus, the National Association of

General Contractors, as justifying

AGC's refusal to supply the roster.

Specifically, they claim disclosure would

violate their members' First Amendment

8 rhe ALJ never addressed the

question whether the roster was relevant

to uncovering unlawful double-breasted

operations. We agree with the Board that

its conclusion on that issue is based not

on a credibility determination, but on

derivative inferences drawn from its

broad experience and expertise. See

Penasquitos Village, Inc. v. NLRB, 565

F.2d 1074, 1078-80 (9th Cir. 1977).

oD hen

rights, and subject them to violence and

harassment. AGC argues the importance of

disclosure is lessened since it already

reviews Open Shop applicants to insure

they are not subject to existing coilec-

tive bargaining agreements.

Nothing in the record supports

AGC's concern that the unions will engage

in violent, harassing, or unlawful

conduct. The First Amendment cases cited

by Amicus, N.A.A.C.P. v. Button, 371 U.S.

415 (1963) and Bates v. Little Rock,

361 U.S. 516 (1960), are therefore

inapplicable. There is no “clear and

the Board's order does not

run afoul of the First Amendment.

Any attempt to reconcile an asserted

governmental interest in disclosure with

First Amendment rights must be made

in the context of the labor relations

(Footnote continued)

a22e

eee ell

present" danger justifying a refusal to

Supply the roster. See Shell Oil Co. vy.

NLRB, 457 F.2d 615, 618-19 (9th Cir.

1972).

AGC's independent review of

Open Shop applicants also does not

justify nondisclosure. That review is

not responsive to the unions' needs:

information from which to make its own

(Footnote 9 continued)

setting. NLRB v. Gissel Packing Co., 395

U.S. 575, 617 (1969). Association that

would otherwise be protected may be

regulated if necessary to protect

substantial rights of employees or to

preserve harmonious labor relations

in the public interest. Id. Those

interests outweigh any minimal inter-

ference with associational rights which

might be present here. We note that AGC

publishes the names of its members in

trade journals and public media, albeit

not its membership classifications. The

record does not support its claims that

disclosure of the roster will have an

adverse impact on its membership.

@-23<

determination regarding possible contract

violations. See Curtiss-Wright Corp. v.

NLRB, 347 F.2d 61, 70 (3d Cir. 1965).

Disclosure of the rosters of «

Open Shop and Open Shop Specialty members

does not impose an onerous burden on

AGC. See Prudential Insurance Co. v.

NLRB, 412 F.2d 77, 85 (2d Cir.), cert.

denied, 396 U.S. 928 (1969). No per-

Suasive reason for nondisclosure is

established in the record, nor has AGC

proposed any practicable alternative to

disclosure. Its refusal to provide the

roster was therefore a failure to bargain

in good faith in violation of §8(a)

(5).79

10,micus argues that the

unions have waived their right to obtain

the roster. That argument is clearly

without merit. See Gorman, Basic Text on

Labor Law, 418 (1977).

aPau

III

The Board ordered AGC to

furnish the unions with a full membership

roster. The record establishes the

relevancy, however, of a roster of

Open Shop and Open Shop Specialty

members only. We modify the Board's

order to include only those membership

classifications.

The Board's order is enforced

as modified. It may present a judgment

in accordance with this opinion.

2 Sen

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL LABOR

RELATIONS BOARD,

NO. 79-7484

Petitioner,

vs.

ASSOCIATED GENERAL

CONTRACTORS OF

CALIFORNIA, INC.,

Respondent,

and

)

46 NORTHERN )

CALIFORNIA COUNTIES )

)

ORDER

CONFERENCE BOARD,

UNITED BROTHERHOOD

OF CARPENTERS AND

JOINERS OF NORTH

AMERICA, AFL-CIO,

and

NORTHERN CALIFORNIA

DISTRICT COUNCIL OF

LABORERS, LABORERS

INTERNATIONAL UNION

OF NORTH AMERICA,

AFL-CIO,

Intervenors.

Before: WRIGHT AND POOLE, Circuit

Judges, and BROWN, Senior

District Judge.

The panel as constituted ir the

above case has voted to deny the petition

for rehearing. Judges Wright and Poole

have voted to reject the suggestion for a

rehearing en banc.

The full court has been advised

of the suggestion for an en banc hearing,

and no judge of the court has requested

a vote on it. Fed. R. App. P. 35(b).

The petition for rehearing is

denied and the suggestion for a rehearing

en banc is rejected.

PMT

D-5125

242 NLRB No. 124 San Francisco, CA

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

ASSOCIATED GENERAL CONTRACTORS OF

CALIFORNIA

and

46 CALIFORNIA COUNTIES CARPENTERS

CONFERENCE BOARD, UNITED BROTHERHOOD OF

CARPENTERS & JOINERS OF NORTH AMERICA,

AFL-CIO

and

NORTHERN CALIFORNIA DISTRICT COUNCIL

OF LABORERS, LABORERS' INTERNATIONAL

UNION OF NORTH AMERICA, AFL-CIO

DECISION AND ORDER

On April 7, 1978, Administrative

Law Judge David G. Heilbrun issued the

attached Decision in this proceeding.

Thereafter, the General Counsel and the

Charging Parties filed exceptions and

supporting briefs, and Respondent“

filed a brief in support of the Adminis-

trative Law Judge's Decision.

Pursuant to the provisions of

Section 3(b) of the National Labor

Relations Act, as amended, the National

Labor Relations Board has delegated its

authority in this proceeding to a three-

member panel.

The Board has considered the

record and the attached Decision in light

ee ee eee

1Also referred to herein

as the Unions, collectively, and as

the Carpenters and the Laborers,

individually.

————— —— — —Ss=

also referred to herein as AGCC.

—iie

of the exceptions and briefs and has

decided to affirm the rulings, findings,

and conclusions of the Administrative Law

Judge only to the extent consistent

herewith.

The complaint alleges that

Respondent - acting in its Capacity as a

multiemployer bargaining representative -

violated Section 8(a)(5) and (1) of the

Act by refusing to furnish the Charging

Parties with requested information as to

the names of all AGCC employer-members,

including the "“open-shop" employer-

members who Respondent asserts are

not bound by the parties' collective-

bargaining agreements.

The Administrative Law Judge

recommended that the complaint be dis-

missed in its entirety. In so doing, his

conclusions appear totally based on

ate

attribution to the Unions of ulterior

motivations for requesting the contested

information. And such attribution is, in

turn, largely the product of specula-

tion and conjecture for the record of the

hearing herein reflects no substantial

evidence in support thereof. Moreover,

the Administrative Law Judge erred in

failing to examine the principal issue

raised in the complaint - whether

the requested information had probable

and potential relevance to the Unions'

statutory obligation to represent

employees within the contractual bar-

gaining units - by application of well-

established principles and criteria which

were approved by the courts in such cases

as N.L.R.B. v. Acme Industrial Co., 385

U.S. 432 (1967), and Curtiss-Wright

Corporation, Wright Aeronautical Division

v. N.L.R.B., 347 F.2d 61 (3d Cir. 1965).

For the reasons set forth below, we find

merit in the exceptions of the General

Counsel and the Charging Parties and

conclude that Respondent's refusal

to furnish the requested information was

violative of the Act.

Respondent is a trade

association which represents firms in the

building construction industry for

purposes, inter alia, of labor relations.

It has had lengthy collective-bargaining

relationships with the Charging Parties

and, at the time the events herein

arose, was party to a 3-year collective-

bargaining contract with each of them -

both contracts expiring on June 15,

1977.

3hese contracts are referred

to hereinafter as the 1974-77 contracts,

[Footnote continued on page 6]

-5-

“a

Responcent has numerous

classifications of membership which, for

purposes relevant to this decision, may

be summarized as regular, specialty,

jOint-venture, open-shop, and open-

shop specialty. As found by the

Administrative Law Judge, the AGCC-

Carpenters contract binds to its pro-

visions all of Respondent's regular,

specialty, and joint-venture members.

As to the AGCC-Laborers contract,

it is undisputed that it binds, at

[Footnote 3 continued]

Subsequently, AGCC enterea into further

3-year contracts with each of the Unions

which are hereinafter collectively

referred to as the 1977-80 contracts.

Hereinafter, when references are made to

contractual provisions but no contract

date is specified, it is because the

provisions discussed are identical in

both the 1974-77 and 1977-80 agreements.

minimum, all employer-members in the same

classifications. 7 Further, with regard

to the extent to which the operations of

AGCC employer-members are covered by the

respective contracts, the Carpenters

agreement provides, in pertinent part, as

follows:

4 the Charging Parties assert

that the Laborers agreement binds "all"

AGCC members (including those in the

"open-shop" membership categories) and

except to the Administrative Law Judge's

conclusions to the contrary. As the

Administrative Law Judge, in analyzing

this issue, failed to give any consider-

ation to, or even mention, the contract's

sec. 16(a) - which, on its face, states

that it "shall be binding upon all

persons, firms, or corporations that...

- are, or during the term hereof become,

members of the Employer" - we give no

weight to his conclusions. However, we

need not and shall not pass upon this

issue as it was not fully litigated

at the hearing and neither the General

Counsel nor the Charging Parties assert

contract coverage of "all" AGCC members

as a basis for establishing the relevance

of the requested information which is the

subject of this litigation.

ao Pes

Section 9 - Liability of

the Parties

This Agreement is

binding upon each

individual employer

regardless of whether

Or not he or it changes

the name or style or

address of his or its

business.

Each individual |

employer, corporate or

other entity, or its

successor, shall be

liable under, subject

to and bound by the

Agreement... .

Similarly, the AGCC-Laborers contract

provides, in pertinent part, as follows:

Section 30 - Change of

Name or Style

This Agreement

is binding upon each

individual employer

regardless of whether

Or not he or it changes

the name or style or

address of his or

its business. Each

individual employer

shall give notice

in writing to said

District Council of any

intent to change the

name, style or address

of his or its business,

Or to perform business

under more than one

name or style or at

more than one address,

prior to the adoption

of a new or different

name, style, or

address, or the addi-

tion of new names or

styles or addresses, as

specified herein.

Nothing in this

paragraph shall be

construed as adding

to the scope of work

covered by this

Agreement.

Prior to 1972, all AGCC members

were concededly bound to Respondent's

contracts with the Carpenters and

Laborers, to the extent that such indi-

vidual members had employees in the

job classifications covered by those

agreements. In 1972, for the first

time, AGCC established an "open-shop"

membership classification for general

contractor members who did not authorize

it to act as their collective-bargaining

representative and who employed no

personnel covered by a collective-

bargaining agreement. Subsequently,

Respondent established an "open-shop

specialty" classification for contractors

other than general contractors who met

the same conditions.

Before the establishment of the

"Open-shop" membership classification, it

had been Respondent's custom to supply

the Unions with the complete AGCC member-

ship roster, as periodically supplemented

by notifications as to new members

and resignations. Starting in 1974,

Respondent substituted for its full

membership list a document entitled

4 Ba

"Membership Roster for Collective

Bargaining Purposes," which set forth

Only regular, Specialty, and jOoint-

venture members and excluded, inter alia,

the open-shop and open-shop specialty

members.

Following the execution of the

1974-77 agreements, Respondent nurtured

the expansion of Open-shop activity by

its members and Prospective members by

sponsoring seminars and programs for

members and the public where advice was

given pertaining to the technical details

of open-shop and "double-breasted"

operations,> the difficulties members

SS nee Pe Geney comes exeeeteeees

The term "double-breasted"

iS used tc describe contractors who

operate two companies, one unionized and

the other nonunionized or open-shop.

Depending on the underlying facts and

[Footnote continued on page 12]

a} Ba

would have in changing their styles of

operation, and the guidelines which

should be followed to assure that - in

the case of double-breasted construction

- the degree of separation maintained

between the two operations (union and

open-shop) is sufficient to avoid

application of the collective-bargaining

[Footnote 5 continued]

circumstances of each case, the employees

of both constituent companies may be held

to constitute a single appropriate

bargaining unit or the employees of each

may be held to form separate units.

In the former case, the collective-

bargaining agreement covering the

employees of the unionized firm may be

held to cover the employees of the

nonunion firm as well; or the employer

may be ordered to bargain on behalf of

both firms with the union which had

represented the unionized portion

of such a double-breasted operation.

See, for example, Don Burgess Construc-

tion Corporation, 277 NLRB 765 (1977);

R. L. Sweet Lumber Company, 207 NLRB 529

(1973), enfd. 515 F.2d 785 (10th Cir.

1975), cert. denied 423 U.S. 986.

@] Pe

agreement to the nonunion enterprise.

Also, AGCC established an open-shop

committee and sought to set up nonunion

employee referral, fringe benefit, and

apprenticeship programs. The Unions

became aware of these AGCC activities as

well as of publications of the national

Associated General Contractors of America

which, inter alia, gave instructions on

double-breasted and open-shop opera--

tions and suggested the phasing out of

union operations and withdrawal from

multiemployer bargaining units. The

number of AGCC open-shop members, in

seeming response to such Stimulus,

increased over the years - from 10 in

1974 to approximately 60 at the time of

the hearing in this case.

at Su

On December 27, 1976, the

Carpenters sent Respondent a letter

stating,

in pertinent part:

»- « « this is a formal

request that you

Submit to us a roster

showing the names of

all members of the AGC,

including those whom

you contend are not

bound by the Master

Agreement negotiations.

All we are seeking

is a roster of contractor

members. It is very

important with respect

to our contractual

positions with the AGC.

We feel you have an

obligation under

Section 8(a)(5) of

the Labor Management

Relations Act of 1947,

as amended, to supply

that information

in connection with

current ongoing

negotiations.

Then, on February 3, 1977, the Laborers

and Carpenters sent Respondent substan-

tially identical letters which - after

oitie

acknowledging receipt of notifications

from AGCC containing the names of new

members and member resignations - went on

to state:

Please advise if

any Of these members

have joined your Open

Shop Division and give

uS a copy of the Open

Shop Division Roster

sO that we can compare

for ourselves. We

want to know if there

has been a change of

names of any of these

contractors and in

what capacity they

may have joined

another branch of your

Organization.

Later in 1977, at the beginning of

contract negotiation sessions, represen-

tatives of the Laborers and Carpenters

again requested AGCC to supply complete

membership rosters, Stating that such

information was also needed to police

better the collective-bargaining

agreements and to enforce contractual

provisions governing the collection

of fringe benefit contributions from

employers. As found by the Adminis-

trative Law Judge, Respondent refused,

and continues to refuse, to furnish the

Unions the requested information.

At the hearing, and in various

communications between the parties prior

thereto, the Unions expressed their

need for the requested information

on a broader basis. One of their

principal reasons appears to be fear

that Respondent's actions have fostered

growth in the relative number of open-

shop employers and volume of nonunion

construction: ° and that, as a result

Sat the hearing, the General

Counsel introduced into evidence the

[Footnote continued on page 17]

ido

thereof, some AGCC employer-members who

are bound to AGCC's collective-bargaining

agreements with the Unions have, in whole

or in part, attempted to escape their

contractual obligations by changing their

names, styles, and corporate status

and/or by creating double-breasted or

——

[Footnote 6 cont inued ]

S-year historical record kept by the

Carpenters pension fund which lists

the monthly totals for carpenters

employed and reported hours worked

(for fringe benefit contribution pur-

poses) in construction covered by the

AGCC-Carpenters contract. It shows a

generally declining trend in the number

of carpenters employed and a similar

decline in hours worked which resulted

in a diminution of pension fund contri-

butions by the covered employers.

ite

alter ego operations. The record

herein establishes that, in fact, some

AGCC members in "“open-shop" membership

categories do share elements of common

ownership and common officers with other

AGCC members who are concededly bound

by AGCC's contracts with the Unions, and

the Unions contend that,

under the provisions of sec. 9 of the

AGCC-Carpenters contract and sec. 30 of

the AGCC-Laborers contract, supra, the

nonunion segments of double-breasted

Operations are covered by their respec-

tive collective-bargaining agreements,

and that such was their intent in

negotiating those provisions. In

addition to fears that their bargaining

units are being eroded by the operations

of double-breasted employers, the Unions

also expressed concern that employers

bound to their contracts were closing out

unionized firms while opening new,

nonunion, companies which would proceed

to join AGCC in open-shop membership

categories. The Unions contend that

secs. 9 and 30, respectively, of their

agreements serve to bind such new,

allegedly nonunion, firms as well.

a~itte

that AGCC has not reported these facts to

the Unions.

It is well established that,

under Section 8(a)(5) of the Act, an

employer is obligated to provide a union

with requested information if there is a

probability that such data is relevant

and will be of use to the union in

fulfilling its statutory duties and

responsibilities as the employees'

exclusive bargaining representative.

N.L.R.B. v. Acme Industrial Co., Supra.

And the fact that the requested infor-

mation may relate to employers and

employees outside the represented

bergaining unit does not, by itself,

; 8

negate its relevance. Moreover,

Scurtis-wright Corporation v.

N.L.R.B., supra; Hollywood Brands, Inc.,

[Footnote continued on page 20]

a} Ga

here one of the Union's principal

purposes in securing such information was

to facilitate inquiry into that very

question -- i.e., whether some of AGCC's

open-shop members are, in fact, bound by

the Unions' contracts and included in the

represented bargaining units.

Respondent's executive director

testified that AGCC conformed with the

provisions of section 9 of the Carpenters

contract and section 30 of the Laborers

contract, supra, by regularly informing

the Unions as to any name, address, or

business style changes effectuated by

[Footnote 8 continued]

142 NLRB 304 (1963), enfd. 324 F.2d 956

(5th Cir.), cert. denied 377 U.S. 923

(1964). Cf. Rodney and Judith Adams,

d/b/a Adams Insulation Company, 219 NLRB

211 (1975).

20m

AGCC employer-members who were bound to

the respective labor agreements. But he

conceded that no such reports were ever

made with respect to AGCC open-shop

members who shared elements of common

Ownership and/or common officers with

firms in membership categories which

were admittedly bound to the Unions'

contracts. Clearly, Respondent effec-

tively determined, entirely by itself,

that those open-shop members were not the

Same employing entities as the unionized

firms with which they appear to have some

relationship.”

2Respondent's executive

director testified that the great

majority of its open-shop and open-shop

specialty members have no relationship

whatever with construction firms which

are bound to collective-bargaining

agreements. And, as to the minority of

[Footnote continued on page 22]

To exercise their statutory

responsibilities - with respect to both

[Footnote 9 continued]

open-shop members who do have some

such connection, AGCC determined -

without consultation, or the sharing

of information, with the Unions - that

the degree of separation maintained

between two wings of such double-breasted

operations was sufficient to free the

"open-shop" firms from any contractual

obligations under the collective-

bargaining agreements binding the related

unionized firms.

With respect to Respondent's

initial determination of whether there

is any relationship whatever between

particular open-shop members and members

bound to labor contracts, the record

fails to establish that AGCC's investi-

gations are thorough and complete. For,

Respondent's executive director conceded

that he only learned from union evidence

at the hearing that a specific pair of

its employer-members bore a "double-

breasted" relationship toward one

another. And, moreover, Respondent

[Footnote continued on page 23]

contract administration and contract

negotiations - the Unions are entitled

to have equal access to the same data so

that they may intelligently evaluate the

facts and, thereby, reach their own

conclusions on whether or not to pursue

remedies for possible contract violations

[Footnote 9 continued]

offered no explanation for the fact

that the "collective-barg-ining" mem-

bership rosters it supplied to the

Carpenters and Laborers contained

differences between them with respect to

the listings of regular and joint-venture

employer-members who were represented by

AGCC for collective-bargaining purposes.

The above-noted factors, in our

view, lend supporting weight to the

Unions' contention that - to define

Sharply the dimensions of the represented

bargaining units - they must know

the names of both the AGCC members

concededly bound to their contracts and

the AGCC members who Respondent contends

are not so bound.

~\ =

or to seek provisions in the contracts

under negotiation which will serve

to preserve the integrity of their

respective bargaining units and the

financial stability of the contractual

fringe benefit funds which have been

adversely affected by the downward trend

in work-based employer contributions.

Therefore, Respondent's duty to bargain

in good faith obligates it to furnish

such information to the Unions even

though it maintains that it has inves-

tigated the applicants for AGCC's

open-shop membership classifications

and has ascertained that those admitted

to such memberships were not covered by

any subsisting collective-bargaining

agreements. For, whatever the eventual

merits of the Unions' claim that their

contracts are being violated and their

athe

bargaining units unlawfully diminished,

they are entitled to the requested

information under the "discovery-type"

standard enunciated in N.L.R.B. v. Acme

Industrial Co., 385 U.S. at 437, to judge

for themselves whether to press their

claims in the contractual grievance

procedure, or before the Board or courts,

or through remedial provisions in the

contracts under negotiation. The

Torrington Company v. N.L.R.B., 545 F.2d

840 (2d Cir. 1976). It is certainly

well within the statutory responsibili-

ties of the Unions to scrutinize closely

all facets relating to the diversion

Or preservation of bargaining unit

work and, therefore, they are fully

warranted in any reasonable probing of

data concerning the exclusion of the

o2be

employees of certain AGCC members from

the bargaining units. +9

On the basis of the facts

and circumstances set forth above, we

conclude that the information sought by

the Unions was relevant and necessary to

their administration of the contracts

between them and the AGCC, to the

intelligent assessment of the advisa-

bility of filing grievances or taking

other remedial action, and to the

formulation of related collective-

bargaining proposals in the then-pending

negotiations.

100 LLR.B. v. Rockwell-

Standard Corporation, Transmission and

Axle Division, Forge Division, 410 F.2d

953, 957 (6th Cir. 1969); Curtiss-Wright

Corporation v. N.L.R.B., supra.

=26-

As, in our view, the relevancy

of the requested information was estab-

11 there was no

lished at the hearing,

justification for the Administrative Law

Judge's conjecture that the Unions’

underlying purpose was to facilitate the

organizing of nonunion companies. Even

assuming, arguendo, that the Unions also

desired the requested information for

such organizational use, it is well

established that, where a union's request

ll iven assuming, arguendo,

that the information sought was not

otherwise "presumptively relevant" to the

Unions' representation of the unit

employees under the "discovery-type"

standard of N.L.R.B. v. Acme Industrial

Co., supra, it has been clearly estab-

lished on the record here that such

information was in fact relevant and

necessary in connection with the par-

ticular matters then in dispute between

the Unions and Respondent.

- bo

for information is for a proper and

legitimate purpose, it cannot make any

difference that there may also be other

reasons for the request or that the

data may be put to other uses. Utica

Observer-Dispatch, Inc. v. N.L.R.B., 229

F.2d 575 (2d Cir. 1956).

Accordingly, we find that

Respondent's refusal to furnish the

information requested by the Unions was

violative of Section 8(a)(5) and (1) of

the Act.

The Remedy

Having found that Respondent

engaged in certain unfair labor prac-

tices, we shall order it to cease and

desist therefrom and to take certain

affirmative action designed to effectuate

the purposes and policies of the Act.

=28-<

Accordingly, Respondent will be

ordered, upon request, to furnish the

Unions with the requested information

hereinbefore found relevant and necessary

to both contract administration and

contract negotiation; specifically,

Respondent's full membership roster,

including the portion which contains the

names and addresses of its open-shop and

open-shop specialty members. Said roster

shall be supplemented by periodic

notifications of additions and deletions

which shall be given with the same

frequency as Respondent has heretofore

followed in notifying the Unions of

modifications in its roster of regular,

specialty, and joint-venture members.

Conclusions of Law

ae Respondent, Associated

General Contractors of California, is an

a2@n

employer engaged in commerce within the

meaning of Section 2(6) and (7) of the

Act.

2. 46 California Counties

Carpenters Conference Board, United

Brotherhood of Carpenters & Joiners of

North America, AFL-CIO, and Northern

California District Council of Laborers,

Laborers’ International Union of North

America, AFL-CIO, are labor organizations

within the meaning of Section 2(5) of the

Act.

3. By refusing to furnish

the above-named Unions with information

necessary and relevant to their adminis-

tration and negotiation of collective-

“argaining agreements with Respondent,

Respondent has engaged in unfair labor

practices within the meaning of Section

8(a)(5) and (1) of the Act.

°8Be

4. The aforesaid unfair labor

practices are unfair labor practices

affecting commerce within the meaning of

Section 2(6) and (7) of the Act.

ORDER

Pursuant to Section 10(c) of

the National Labor Relations Act, as

amended, the National Labor Relations

Board hereby orders that the Respondent,

Associated General Contractors of

California, San Francisco, California,

its officers, agents, successors, and

assigns, shall:

l. Cease and desist from:

(a) Refusing to bargain

collectively with 46 California Counties

Carpenters Conference Board, United

Brotherhood of Carpenters & Joiners of

North America, AFL-CIO, and Northern

California District Council of Laborers,

stile

Laborers' International Union of North

America, AFL-CIO, by refusing to supply

relevant information upon request.

(b) In any like or

related manner interfering with,

restraining, or coercing employees in the

exercise of the rights guaranteed them in

Section 7 of the Act.

2. Take the following

affirmative action which is necessary to

effectuate the policies of the Act:

(a) Furnish, upon

request, to said Unions its full member-

ship roster including the portion that

lists the names and addresses of its

open-shop and open-shop specialty

members, as periodically supplemented in

the manner provided in "The Remedy"

section of this Decision.

o32e

(b) Post at its offices,

and at the offices of all its employer-

members, copies of the attached notice

12 Copies of said

marked "Appendix."

notice, on forms provided by the Regional

Director for Region 20, after being duly

Signed by Respondent's representative,

shall be posted by Respondent and

by each of its employer-members immedi-

ately upon receipt thereof, and be

maintained by them for 60 consecutive

days thereafter, in conspicuous places,

including all places where notices

to employer-members employees are

1254 the event that this

Order is enforced by a Judgment of a

United States Court of Appeals, the words

in the notice reading "POSTED BY ORDER OF’

THE NATIONAL LABOR RELATIONS BOARD" shall

read "POSTED PURSUANT TO A JUDGMENT OF

THE UNITED STATES COURT OF APPEALS

ENFORCING AN ORDER OF THE NATIONAL LABOR

RELATIONS BOARD,"

«330

customarily posted. Reasonable steps

shall be taken by Respondent and its

employer-members to insure that said

notices are not altered, defaced, or

covered by any other material.

Director for Region 20, in writing,

within 20 days from the date of this #

Order, what steps Respondent has taken to

comply herewith.

Dated, Washington, D.C. June 8,

1979.

John A. Pennelo, Member

Betty Southard Murphy, Member

John C. Truesdale, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

athe

D=--5125 -

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

WE WILL NOT refuse to bargain

collectively with 46 California Counties

Carpenters Conference Board, United

Brotherhood of Carpenters & Joiners of

North America, AFL-CIO, or Northern

California District Council of Laborers,

Laborers' International Union of North

America, AFL-CIO, by refusing, upon

request, to furnish information necessary

and relevant for the Unions' use in

policing, administering, and negotiating

collective-bargaining agreements between

us and the Unions.

WE WILL NOT in any like or

related manner interfere with, restrain,

or coerce employees in the excise of the

rights guaranteed in Section 7 of the

Act.

WE WILL, upon request, furnish

the aforesaid Unions with copies of our

full membership roster.

ASSOCIATED GENERAL CONTRACTORS OF

CALIFORNIA

(Employer)

Dated

(Representative) (Title)

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 Board's Office, Federal

Building, Room 13018, 450 Golden Gate

Avenue, San Francisco, California 94102,

Telephone 415-556-0335.

JD-(SF)-81-78

All California, Exclusive

of San Diego County.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGE

BRANCH OFFICE

SAN FRANCISCO, CALIFORNIA

ASSOCIATED GENERAL CONTRACTORS OF

CALIFORNIA

and Case No. 20-CA-12355

46 CALIFORNIA COUNTIES CARPENTERS

CONFERENCE BOARD, UNITED BROTHERHOOD

OF CARPENTERS & JOINERS OF NORTH AMERICA,

AFL-CIO

ASSOCIATED GENERAL CONTRACTORS OF

CALIFORNIA

and Case No. 20-CA-12497

NORTHERN CALIFORNIA DISTRICT COUNCIL

OF LABORERS, LABORERS' INTERNATIONAL

UNION OF NORTH AMERICA, AFL-CIO

Patricia S. Radez and David F. Sargent,

for the General Counsel.

Victor J. Van Bourg and Michael B. Roger,

San Francisco, Calif., for the

Charging Parties.

Lawrence H. Kay, Sacramento, Calif.,

for Respondent.

DECISION

Statement of the Case

DAVID G. HEILBRUN, Adminis-

trative Law Judge: This case was heard

during January 1978, in San Francisco,

California, based on a consolidated

complaint alleging that Associated

General Contractors of California, called

Respondent, has refused to furnish

certain requested information which is

assertedly relevant to the performance of

duties as exclusive collective bargaining

representative for employees working in

construction trades as carpenters and

laborers by 46 California Counties

Carpenters Conference Board, United

Brotherhood of Carpenters & Joiners

of North America, AFL-CIO, called

Carpenters, and Northern California

District Council of Laborers, Laborers'

International Union of North America,

AFL-CIO, called Laborers, respectively,

and has thereby violated Section 8(a)(1)

and (5) of the Act.

Upon the entire record,

my Observation of witnesses, and

consideration of post-hearing briefs, I

make the following:

Findings of Fact and Resultant

Conclusion of Law

Respondent is a trade associa-

tion primarily representing contractors,

and to a lesser extent other firms

allied with the construction industry.

1Respondent, a voluntary

association of California employers

engaged in the building and construction

industry, maintains its principal head-

quarters in Sacramento, California.

In the course and conduct of annual

[Footnote continued on page 4)

Reflecting a lengthy collective-

bargaining relationship with numerous

unions, Respondent is currently party to

3-year contracts with the Carpenters and

Laborers which succeeded agreements

bearing a June 15, 1977 expiration date.

Respondent classifies its members as

regular, open shop, joint venture,

honorary, specialty, limited speciality,

open shop speciality and affiliate.

Non-open shop members are bound expressly

[Footnote continued from page 3]

business operations by Respondent's

employer-members, goods and materials

valued aggregately in excess of $50,000

were purchased and received directly by

such employer-members from suppliers

located outside California. I find

Respondent to be an employer engaged in

commerce within the meaning of Section

2(2), (6) and (7) of the Act, and that

Carpenters and Laborers are each labor

organizations within the meaning of

Section 2(5).

or by clear implication to at least two

collective-bargaining agreements by

virtue of documentation executed during

the application process. The application

form used to initiate either type of open

shop membership is silent on the subject

of collective bargaining. Open shop

became an organic category of membership

in 3972.

This case spins off a nation-

ally manifesting phenomenon that is

broadly termed the open shop movement.

Several theories are held as to impetus,

Status, and prospects for this subject.

It is variously attributed to a push

for minority employment in the domestic

construction industry, reportedly prohi-

bitive costs of bidding with anticipation

of employing union labor, entry of

non-traditional employees into the field,

and changing ethics among those aspiring

to be construction workers. The subject

is of at least decade-long evolution as

indicated by trade journal articles of

the late ‘60's. "Open Shop Group Urges

Labor Changes," Engineering News-Record,

10/24/68, p. 81 reported the llth Annual

Convention of the Associated Builders and

Contractors, Inc. (ABC), the national

association of merit (open shop) con-

tractors, as then claiming 2300 member

firms in 18 states. The following year

brought "The Open Shop Voice Grows Loud

and Clear," Engineering News-Record,

11/27/69, pp. 44-46 reporting growth of

ABC to 200 Chapters and the AGC's "first

national open shop conference," one

"publicly recognizing the fact that 35

percent of its 9,000 members operate

open shop." During an address to

the Sheet Metal and Air-Conditioning

Contractors' National Association, Edward

J. Carlough, President of Sheet Metal

Workers International Association,

AFL-CIO, proposed attitudinal changes,

elimination of jurisdictional disputes,

and wage scale realism in the context of

Slackened competitive position of union

contractors and curtailed employment

Opportunities for members of his labor

organization. "Contractor Relations on

Upgrade: Union Seeks 'Drastic Changes’

to Compete Against Open Shops," Air

Conditioning, Heating & Refrigeration

News, 11/8/76, pp. 5-6. The passage of

time has simply heightened awareness of

this subject, as illustrated by the

feature cover story updating status of

open shop or double-breasted operations,

which were thought to now constitute a

ete

"majority of all construction in the

U.S." "Open Shop Construction Keeps

Growing Bigger, Getting Stronger,"

Engineering News-Record, 10/27/77, pp.

20-24.

Over the years following 1972,

Respondent nurtured open shop activity in

two chief ways. It unabashedly sponsored

public programs on open-shop operations,

and endorsed detailed written materials

that had been prepared on the subject.

In a separate vein, Respondent pressed

the California Department of Industrial

Relations to approve a "non-traditional"

apprenticeship program for the develop-

ment of multi-skilled, generically titled

"construction workers." Consistent with

this general theme, Respondent furnished

the Union a bound membership directory

styled "Membership Roster for Collective

Bargaining Purposes," in which neither

open shop nor open shop specialty members

were listed. As these dynamics unfolded

over several years, various formal and

informal communications passed between

Respondent and signatory unions of this

litigation. Victor Van Bourg, attorney

for the Carpenters, was advised during

negotiations for the 1974-77 contract

that open shop classifications existed; a

communication that resulted in side

letter dated August 14, 1974, which

addressed the issue. For the Laborers,

their business manager Sal Minerva

testified that he did not become aware of

the distinction until 1975. van Bourg

(otherwise also ad hoc counsel to the

Laborers) filed a United States District

Court action in February 1975 in which

the Carpenters, as plaintiff, alleged

exploitation of open shop principles by

Respondent in conspiratorial fashion

warranting damages (provable, trebled and

exemplary) totaling $825,000,000. This

action is pending before the Ninth

Circuit, on appeal from dismissal. As

end of the 1974-77 contract period

neared, both unions made unequivocal

request for disclosure of all open

shop members, pressing a position that

representation of such class of a ee

by Respondent would be violative "of law

and our Agreement." This was declined

both by inaction and concurrent dialogue

in which officials of Respondent made

known their intention to keep the open

shop roster confidential. These charges

followed in January 1977.

It is fundamental to any

application of the “relevant and neces-

-10-

sary” doctrine relating to disgorgement

of employer-controlled information that

the bargaining unit(s) involved be

clearly known. Here the consolidated

complaint originally vaguely pleaded

unit in terms of "certain employer-

members" employing persons in applicable

craft work. This phraseology, amended

before imminent close of hearing, seems

traceable to the original charges, in

which no more descriptive statement was

made than one referred to collective

bargaining agreements entered into "on

behalf of [Respondent's] affiliate

members." In fact, a recognition clause

with gradations of clarity between

the two descriptions exists in both

mS, ee

agreements. * In the order of Carpenters

and Laborers, they read:

EMPLOYER MEMBERSHIP

This Agreement shall be

binding upon each

and every regular,

specialty and joint

venture member of the

Employer [expressly

recognized elsewhere by

the Union as the

sole and exclusive

bargaining represen-

tative for their

respective members,

present and future,

2ror these purposes, the

perfect carryover of language from the

1974-77 contracts to those now extant

makes delineation between the two periods

of time unnecessary.

itis

who are or hereafter

become members]

performing work under

this agreement with

the same force and

effects as if this

Agreement were entered

into by each such

member individually.

All such members

of the Employer shall

be and remain liable

under this Agreement

for and during the term

hereof, irrespective of

whether such members

shall resign from the

Employer prior to

the expiration date of

this Agreement, and

nS Divs

such liability shall be

deemed to have survived

the termination of said

membership and remain

in force for and during

the term of this

Agreement ... .«

(SECTION 6.)

* * * x

Union's Recognition of Collective

Bargaining Representative of Employer

The Union hereby

recognizes and acknow-

ledges that the

Collective Bargaining

Representative of

Employer includes in

its membership a

majority of the

individual employers in

the highway, general

building and heavy

construction industry,

and said individual

employers are per-

forming the greater

percentage of work

therein. By reason of

such facts the Union

hereby recognizes

that the Collective

Bargaining Represen-

tative of the Employer,

as hereinabove referred

to, is the collective

bargaining represen-

tative for all persons,

firms, or corporations

who are now or here-

after may become

members of any employer

Organization that is

now or hereafter and

may be signatory or

bound hereto of any

individual employer who

is not a member of

any such employer

organization, and who

is or hereafter may be

listed on a membership

list or roster or

becomes signatory

hereto with respect to

highway, general

building and heavy

construction industry

in the territory

subject to this Agree-

ment. (Section 2A.)

nite

The recognition clause of the

Carpenters' Agreement beggars extensive

comment. It is expressly limited to

three classifications of AGC membership,

each of them commonly viewed within

the industry and otherwise of plain

meaning. The language is harmonious with

established membership processing,

particularly insofar as Respondent

entertains applications, classifies

members and establishes dues formulae.

As to dues, a basic approach of minimums

and maximums obtains, within which

actual calculations of payment is based

on volume of business done, "labor

over-ride,"" and special provisions

applicable only to joint ventures and

affiliates.’ The dues patterns that

pertain to specialty, limited specialty

and open shop specialty members are

Similar to their broader counterparts.

Cost of membership for the first two

is a minimum plus hourly-based labor

the labor over-ride facet of

membership dues is for regular members

"1-1/2 cents per hour for each man-hour

worked . .. under bargaining agreements

negotiated by [AGC]," and for open-shop

members $2 per month "for each jobsite

employee [working 50 or more hours] in

any one month."

4 the previously-discussed

side letter, forming an integral part of

the Carpenters' former contract, states,

inter alia: "Sections 6 and 9 (Liability

of the Parties) of the newly-negotiated

Agreement shall be interpreted as apply-

ing only to Regular, Specialty and Joint

Venture members of your Association."

over-ride; that for the third category of

open shop specialty is volume based with

a minimum. From this no ambiguity

remains and scope of the Carpenters'

contract is properly thought of as being

coextensive with the three membership

classes, each of which is fully set

forth in the "for collective bargaining

purposes" roster and periodically updated

in reasonable manner.

Substantially more analysis

is required to fathom just what the

recognition clause of the Laborers’

contract covers by intent and effect.

Syntactically abstruse, of convoluted

composition, and at points simply

undecipherable, the two sentences

comprising Section 2A cannot yield any

~13s

sure meaning.» The oddness of phrasing

is first noticed in the term "Collective

Sirokiniae Representative of Employer"

(presumably attemptedly reiterated in the

same sentence by unexplainable addition

of definite article "the"). This quoted

term is memorialized in the agreement as

the object of the Laborers' fundamental

recognitional act for purposes of labor-

This characteristic is not

without some analogy to the reported

situation of General Counsel declining to

issue complaint against Associated

General Contractors of California,

Respondent here, when it unilaterally

modified subcontracting phraseology of

master labor agreements which were

unlawful on their face under Connell

Construction Co. v. Plumbers Local 100,

421 U.S. 616, a step protested by the

filing of unfair labor practice charges

by various labor organizations including

Eleven Southern California Conference of

Carpenters, counterpart for much of the

rest of California as Carpenters here.

NLRB Gen. Couns. Ad. Mem. No. 31-CA-6315

(1977), 95 LRRM 1540,

~20=

management dealings. The section

continues with an awkward binding of

_ employers "signatory or [hereafter]

bound" plus those "listed on a membership

list or roster," termed in context of

"any employer organization [emphasis

supplied]." The essential vice in

General Counsel's case here is that open

shop members are specifically not bound

to contracts, nor are they within the

intendment of a membership listing

when done expressly not for collective

bargaining purposes. It would distort

common meaning of association bargaining

practices were the open shop firms to be

considered within the Laborers' bar-

gaining unit when a sophisticated agency

relationship is rooted just oppositely.

For this reason I decline to hold that

such dissembled phraseology serves to

~—\=

bind all Respondent's members to the

Laborers’ contract.

The unions' quarrel with

Respondent is essentially one to be

handled in the organizational forum,

a point that has received belated

recognition at the highest levels with

extensive publicity of the very fact

that California becomes a target area

for the effort. "The Building Trades

Find Teamster Allies," Business Week,

February 27, 1978. Respondent's choice

of creating and fostering its open shop

division is an institutional matter;

one that differs not in principle from

the controversial establishment several

years ago of coalition bargaining as a

technique believed beneficial to overall

goals of the union movement. While

disclosure of the open shop roster would

well assist these charging parties,

plus their higher affiliates, in research

and strategy planning, it cannot be

said they have that entitlement under

doctrine of whether certain information

is relevant and necessary to fulfillment

of a representational role. To grant

this would smack of participating

in the notorious "top down" mode of

Organizing employees. Additionally,

the ease of corporate restructuring

and quasi-multiple use of contractor

registration procedures are legislative

concerns within the state's jurisdiction,

or well suited to adjudications under

NLRA Section 301. In the same sense,

unsuccessful efforts to legitimatize

a non-traditional apprenticeship program

does not weigh against Respondent.

The unions complain of imperfection

-X

in Respondent's ability to advise

of regular Southern California members

operating temporarily north of defined

jurisdictional boundary, and of unneces-

sary exposure to, or practically

entrapment with, unintended Section

8(b)(7) proceedings. The answer here is

still more compellingly that labor

organizations must accept minimal

responsibility for their organizational

needs, and improper conduct resulting in

CP charges invariably follows some

introductory communication with the

affected employer. Cf. Bldg. and

Const. Trades Council of Fond Du Lac

County, 168 NLRB 606; Hoffman v. IATSE,

Local 611,.81 LRRM 2759. Convenience is

not equitable with necessity, and both

Carpenters and Laborers are essentially

unimpeded in their function as party to

-24--

construction industry contracts that

relate only to Respondent's major

traditional arm. Cf. Local 13, Detroit

Newspaper Printing Union, 233 NLRB No.

144, Only a latent validity is present

in the unions' protest. Their basic

failing is to have yet secured language

within protest. Their basic failing is

to have yet secured language within the

collective-bargaining agreements that

adequately identifies types of employers

for whom they enjoy recognition. When

and if such a point is reached, it

would then be timely to address the

basic issue here in terms of a right

to tangible extrinsic information

about other facets of Respondent's

organizational structure. General

Counsel's brief artfully traces the

settled principles of disclosure where

—

presumptive, probable, or potential

relevance is legitimately shown. In the

last analysis, the case becomes one of

whether non-union construction firms

may purchase the administrative and

promotional services of an industry

support mechanism, without further

entanglements stemming from a separately

existing labor relations function. I

believe a negative answer would overreach

to the detriment of basic Section 7

rights as preserved to employees.

Accordingly, I render a

conclusion of law that Respondent has not

violated the Act as alleged, and issue

-26-

ORDER

The complaint be dismissed in

its entirety.

Dated: April 7, 1978.

/s/

David G. Heilbrun

Administrative Law Judge

Orn the event no exceptions

are filed as provided by Section 102.46

of the Rules and Regulations of the

National Labor Relations Board, the

findings, conclusions, and recommended

Ov~der herein shall, as provided in

Section 102.48 of the Rules and Regu-

lations, be adopted by the Board and

become its findings, conclusions, and

Order, and all objections thereto shall

be deemed waived for all purposes,

a hy

APPENDIX E

STATUTES RELEVANT TO THIS PETITION

l. Section 10(e), National

Labor Relations Act:

The Board shall have power

to petition any court of appeals of the

United States, or if all the courts of

appeals to which application may be made

are in vacation, any district court of

the United States, within any circuit or

district, respectively, wherein the

unfair labor practice in question

occurred or wherein such person resides

Or transacts business, for the enforce-

ment of such order and for appropriate

temporary relief or restraining order,

and shall file in the court the record in

the proceedings, as provided in section

2112 of title 28, United States Code.

Upon the filing of such petition, the

court shall cause notice thereof to be

served upon such person, and thereupon

shall have jurisdiction of the proceeding

and of the question determined therein,

and shall have power to grant such

temporary relief or restraining order as

it deems just and proper, and to make and

enter a decree enforcing, modifying, and

enforcing as so modified, or setting

aside in whole or in part the order of

the Board. No objection that has not

been urged before the Board, its member,

agent, or agency, shall be considered

by the court, unless the failure or

neglect to urge such objection shall

be excused because of extraordinary

circumstances. The findings of the Board

with respect to questions of fact if

supported by substantial evidence on the

i ay

~¥

record considered as a whole shall be

conclusive. If either party shall

apply to the court for leave to adduce

additional evidence and shall show

to the satisfaction of the court that

such additional evidence is material

and that there were reasonable grounds

for the failure to adduce such evidence

in the hearing before the Board, its

member, agent, or agency, the court may

order such additional evidence to be

taken before the Board, its member,

agent or agency, and to be made a part

of the record. The Board may modify

its findings as to the facts, or make

new findings, by reason of additional

evidence so taken and filed, and it

shall file such modified or new findings,

which findings with respect to questions

of fact if supported by substantial

i Bee

evidence on the record considered as a

whole shall be conclusive, and shall file

its recommendations, if any, for the

modification or setting aside of its

Original order. Upon the filing of the

record with it the jurisdiction of the

court shall be exclusive and its judgment

and decree shall be final, except that

the same shall be subject to review by

the appropriate United States court of

appeals if application was made to the

district court as hereinabove provided,

and by the Supreme Court of the United

States upon writ of certiorari or

certification as provided in section 1254

of title 28.

de Sections 8(a)(l) and

8(a)(5) of the National Labor Relations

Act:

(a) It shall be an unfair

labor practice for an employer--

(1) to interfere

with, restrain, or coerce employees in

the exercise of the rights guaranteed in

section 7 . 3 «

(5) to refuse

to bargain collectively with the

representatives of his employees, subject

to the provisions of section 9(a).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.