Petition — Hebert v. National Labor Relations Board

Supreme Court brief1983

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o& Zz = 1 84 9 etc ce U.S.

NO. MAY 19, 1983

ALEXANDER LC STEVAS

| CLERK

In the

Supreme Court of the United States

OCTOBER TERM, 1982

LEONARD B. HEBERT, JR. & CO., INC.?

LANDIS CONSTRUCTION COMPANY, INC.

PRATT FARNSWORTH, INC.;

BOH BROS. CONSTRUCTION CO., INC.;

AMERICAN GULF ENTERPRISES, INC.;

GURTLER-HEBERT & CO., INC.;

PITTMAN CONSTRUCTION COMPANY, INC.

BARTLEY INCORPORATED;

BINNINGS CONSTRUCTION CO., INC.;

AND GERVAIS FAVROT COMPANY, INC.,

“es

-s*

Petitioners,

versus

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

WILLIAM E. HESTER III,

(COUNSEL OF RECORD)

CHARLES H. HOLLIS

Kullman, Lang, Inman & Bee

A Professional Corporation

Post Office Box 60118

New Orleans, Louisiana 70160

Telephone: (504) 524-4162

COUNSEL FOR PETITIONERS

QUESTIONS PRESENTED

1. Whether the Fifth Circuit Court of

Appeal's decision in N.L.R.B. v. Leonard

BS. Herbert, Jr. & Co... SnC., ot al., 696

F.2d 1120 (5th Cir. 1983) conflicts with

the Ninth Circuit's decision in San Diego

Newspaper Guild v. N.L.R.B., 548 F.2d 863

(9th Cir. 1977) and other Circuit Court of

Appeals decisions by holding that an

employer, which has a bargaining

relationship with a union, must provide

the union with information on subjects

Outside central core bargaining issues

such as wages, hours, and working

conditions, when the union has not first

shown the employer that the requested

information is relevant to its duties and

obligations as the employees' bargaining

representative?

2. Whether due process permits a

finding of a duty by an employer to

Provide information, on subjects outside

central core bargaining issues, to a union

with which it has a bargaining relation-

ship when the union has failed to demon-

strate that the information sought is in

any way relevant to the bargaining

relationship between the union and the

individual employer?

3. Whether the reasons, advanced by

the Union for the first time at the

hearing before the Administrative Law

Judge, for seeking the information from

the Companies were sufficient to meet the

Union's burden of showing the relevancy of

the infcrmation it seeks to the bargaining

relationship between the Union and the

individual Companies?

pie |

RULE 28:1 STATEMENT

Parties to this case are:

Carpenters District Council

of New Orleans & Vicinity

and Local Union 1848

Jerry L. Gardner, Jr.

Barker, Boudreaux, Lamy,

Gardner & Foley

& Foley

Leonard B. Hebert Jr. &

COus IRC.

Landis Construction

Company, Inc.

Pratt Farnsworth, Inc.

Boh Bros. Construction

Co... inc.

American Gulf Enterprises,

Inc.

Gurtler-Hebert & Co., Inc.

Pittman Construction

Company, Inc.

Bartley Incorporated

Binnings Construction Co.,

Inc.

Gervais Favrot Company,

Inc.

Charging Party

Counsel for the

Charging Party

Petitioners

Frederick A. Kullman

William E. Hester III

Charles H. Hollis

Kullman, Lang, Inman &

Bee

Associated General

Contractors of

Louisiana, Inc.,

New Orleans

Counsel for

the Petitioners

Organization

Representing

the Petitioners

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .e« «e+e es ° i

RULE 28:1 STATEMENT. « «+ « « ° ° iii

TABLE OF CONTENTS Cee ae eee Vv

Paate OF AUTHORITING . «6 «6 6 ew tw ww) UES

OPiniOme Beit 6 8 8 et hl ll et 2

hee ORE TG Lae @ la SE ee 2

STATOIS IeVuuvew «¢ 6 6 te ee le le lf 3

STATEMENT OF THE CAGE -« © s+ e+ @© © 8 4

REASON FOR GRANTING THE WRIT... -» 14

I. THE DECISION IMPOSING A DUTY

TO DISCLOSE AND FINDING A

VIOLATION FOR FAILURE TO DO SO

1S tee te 6 ee ee 14

II. THE FIFTH CIRCUIT'S FINDING

| THAT THE UNION HAD A SUFFICIENT

BASIS FOR REQUESTING INFORMATION

FROM EIGHT OF TEN PETITIONER

COMPANIES BASED SOLELY ON THEIR

ASSOCIATION WITH EACH OTHER IS

ERRONEOUS AS A MATTER OF LAW AND

FACT e as a7 o e . . os e e * & a a7

III. THE FIFTH CIRCUIT'S FINDING

THAT THE REASONS OFFERED AT THE

ADMINISTRATIVE HEARING WERE

SUFFICIENT TO SATISFY THE UNION'S

BURDEN OF SHOWING THE RELEVANCY

OF THE INFORMATION IT SEEKS IS

Pe a ee cP |

ewe Re ee 43

CERTIFICATE . . . . . ° « . . a . o 45

Beret lhl lk lk le He me 8 A-l

APPENDIX B = ® ° « r) e ° ° . « © ° B-l

APPENDIX e n * oe * e * *. o * o *- . c-1l

APPENDIX D o . - ° . e ° » ° o * . D-1l

E-l

APPENDIX E aa * e e a a . oe e ° e 7

Vii

TABLE OF AUTHORITIES

Cases: Page

Atlas Metal Parts Co., Inc. v. NLRB,

660 F.2d 304 (7th Cir. 19€1) ~ « 26 ee

Curtiss-Wright Corp. v. NLRB,

347 F.2d 61 (3rd Cir. E9G3) « « + 35,94

Doubarn Sheet Metal,

mes Mums Gel (1979) .... i. 4 18

Emeryville Research Center v. NLRB,

44) F.2d 880 (9th Cir. ett 4 32

I.U.E. v. NLRB,

690 F.2d 334 (D.C. Cir. a9G0) . . 33,36

NLRB v. Associated General Contractors,

633 F.2d 766 (9th Cir. 1980 )

Cert. G@Onie0q 452 U.S. 915 .... 17

NLRB v. Leonard Hebert, 4.16

No. 82-4085 (5th Cir. Eaea) « «+ « 16,30

NLRB v. Rockwell-Standard Corp.,

Trans & Axle Div., 410 F.24 953

(6th Cir. 1969) 15, 24

NLRB v. Temple-Eastex, Lo

5979 F.2d 932 (5th Cir. et er eae

NLRB v. Truitt Mfg. Co.,

a —e 33

NLRB v. Western Electric, nC ss

959 F.2d 1131 (8th Cir. Botti. « «645,24

Prudential Insurance Co. v. NLRB,

412 F.2d 77 (2nd Cir. 1969)

cert. denied 369 U.S. 928 (2969). 15,264

viii

Page

San Diego Newspaper Guild v. NLRB, 14,17

SAG ©.70 86% (9th Cir. i977)... 20,24

Soule Glass & Glazing Co. v. NLRB,

S75 ©.2768 1055S (iet Cir. 21961) . . 45,24

United Furniture Workers v. NLRB,

368 F.24€ 880 (4th Cir. 1967) s « 35,26

Universal Camera v. NLRB,

a a oe re

Statutes:

Bo U6. St eeetks) ee kt ll ee 3

National Labor Relations Act

29 0.6.C. $156(2) 0. ) ie 6 ees 3,46

National Labor Relations Act

pe a en 3,4

National Labor Relations Act

Oo OC. Seas ls lk te 8 le 5,42

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

LEONARD B. HEBERT, JR. & CO., INC.

LANDIS CONSTRUCTION COMPANY, INC.

PRATT FARNSWORTH, INC.;

BOH BROS. CONSTRUCTION CO., INC.;

AMERICAN GULF ENTERPRISES, INC.;

GURTLER-HEBERT & CO., INC.;

PITTMAN CONSTRUCTION COMPANY, INC.

BARTLEY INCORPORATED;

BINNINGS CONSTRUCTION CO., INC.;

AND GERVAIS FAVROT COMPANY, INC.,

Petitioners,

versus

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

meonarG B&B. Hebert, Jr. & Co., Inc,

Landis Construction Company, Inc., Pratt

Farnsworth, Inc., Boh Bros. Construction

Co., Inc., American Gulf Enterprises,

Inc., Gurtler-Hebert & Co., Inc., Pittman

Construction Company, Inc., Bartley

Incorporated, Binnings Construction Co.,

Inc., and Gervais Favrot Company, Inc.,

respectfully pray that a Writ of

Certiorari issue to review the judgment of

the United States Court of Appeals for the

Fifth Circuit in National Labor Relations

Board v. Leonard B. Hebert, Jr. & Co.,

inc... @t o1:., 696 F.2d 1120 (Sth Cir.

1983), Rehearing and Rehearing En Banc

denied ry. 2a

OPINIONS BELOW

The decision of National Labor

Relations Board Administrative Law Judge

is reported at 259 NLRB 881 (1981) and

appears as Appendix "C" hereto. The

Opinion of the National Labor Relations

Board is reported at 259 NLRB 881 (1981),

and appears as Appendix "D". The opinion

of the United States Court of Appeals for

the Fifth Circuit is reported at 696 F.2d

1120 (5th Cir. 1983), and appears as

Appendix "A". The Petition for Rehearing

and Petition for En Banc Consideration

were denied without opinion and appear as

Appendix "B".

JURISDICTION

Judgment of the Court of Appeals was

entered on January 31, 1983. Timely

Petitions for Rehearing and for En Banc

Consideration were denied on April l,

1963. The jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1).

STATUTES INVOLVED

The relevant statutory provisions are:

1. Sections 8(a)(1), 8(a)(5) and

10(e) of the National Labor Relations Act,

29 U.S.C. $$158(a)(1), 158(a)(5) ana

160(e).

Pertinent portions of these statutory

pro’ isions are reproduced as Appendix "E".

STATEMENT OF THE CASE

On March 14, 1980, the Carpenters

District Council of New Orleans & Vicinity

and Local 1846 (the "Union") filed charge

number 15-CA-7622 with the Regional

Director for the Fifteenth Region of the

National Labor Relations Board (the

"Board") against eleven construction

companies (the "Contractors") and the

Associated General Constructors of La.,

Inc., a trade organization consisting of

various construction companies throughout

Louisiana, alleging that they had engaged

in or were engaging in unfair labor

practices within the meaning of Sections

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

Relations Act, 29 U.S.C. §§158(a)(1) and

(5). The Contractors against whom the

charge was filed are Perrilliat-Rickey

Construction Co., Inc.; Leonard B. Hebert

Jr. & Co., Inc.; Landis Construction Co.,

Inc.; Pratt Farnsworth, Inc.; Boh Bros.

Construction Co., Inc.; American Gulf

Enterprises, Inc.; Gurtler-Hebert & Co...

Inc.; Pittman Construction Co., inc.:

Bartley, Inc.; Binnings Construction Oss

Inc.; and Gervais F. Favrot Co., Inc.

After investigation, a complaint was

issued against all of the Contractors

except Perrilliat-Rickey Construction Co.,

Inc., and the Associated General

Contractors of Louisiana, Inc. A hearing

was held before the Honorable Thomas R.

Wilks, Administrative Law Judge, on

February 24, 1981, in New Orleans,

Louisiana, and all parties were present

and were given the Opportunity to present

evidence and to examine and cross-examine

witnesses.

On May 4, 1981, Judge Wilks issued a

Decision in which he found that the

Contractors had violated Sections 8(a) (1)

and (5) of the Act and recommended that

they be ordered to furnish the Union with

certain information. Thereafter, the

Contractors filed exceptions and a

supporting brief with the Board.

The Board delegated its authority to a

three-member panel which affirmed the

rulings, findings, and conclusions of the

ALJ and adopted his recommended order,

except that contrary to the ALJ, the Board

found insufficient evidence to establish

the existence of a multiemployer

bargaining unit and, in addition, modified

the notice by identifying the Union's

individual letter requests for information

from the Contractors as having been dated

between January 18 and February 12,

1980.2/

if 259 NLRB G61 at 2 nn. 2 & 3.

When the Contractors failed to provide

the information as ordered, the Board

petitioned the Fifth Circuit Court of

Appeals for enforcement. Ina decision

issued January 31, 1983, a three-judge

panel, with Judge Garwood dissenting,

enforced the Board's order in all

respects. The Contractors filed Petitions

for Rehearing and for En Banc Consider-

ation, both of which were denied on April

iy 1963.

The sole basis for the Union's unfair

labor practice charge against each

Contractor is the Contractor's refusal to

provide answers to a series of questions

submitted by letter to each Contractor by

the Union. The Union's letter asked

thirteen questions of each Contractor

which ostensibly were asked to find out

the relationship between each Contractor

and another named company. The letters

were identified by the Executive Secretary

of the Union, D. P. Laborde, Sr., and were

introduced as joint exhibits.— The

following questions were asked in each

letter:

1. What positions in [other company] are

held by each officer, shareholder,

director or other management repre-

sentative of your Company?

2. State the name of each person who has

2/ The names of the particular

Petitioners, the names of the other

companies of which the particular

questions were asked, and the exhibits

numbers follow: American Gulf

Enterprises, Inc., and RTL Corporation

(J-3(b)); Bartley, Incorporated and

Thunderbird Construction Company (J-3(d));

Binnings Construction Co., Inc. and

Southbend Contractors Company and Franklin

Foundation Co., Inc. (J-3(e) and J-3(f));

Boh Bros. Construction Co., Inc. and

Broadmoor Corporation (J-3(g)); Gervais F.

Favrot Co., Inc. and Cabildo Construction

Company (J-3(j)); Gurtler-Hebert & Co.,

Inc. and Kendall Construction Co., Inc.

(J-3(1)); Leonard B. Hebert Jr. & Co. and

Professional Construction Services, Inc.

(J-3(0)); Pratt Farnsworth, Inc. and

Halmar, Inc. (J-3(r)); Pittman

Construction Co., Inc. and Gulf Winds,

Inc. (J-3(v)); and Landis Construction

Co., Inc. and Audubon Construction Corp.

(J-3(w)).

a function related to labor relations of

your Company and for [other company].

3. What customers of [other company] are

now or were formerly customers of your

Company?

4. State the difference, if any, in the

type of business engaged in by your

Company and [other company].

5. What services, including clerical,

administrative, bookkeeping, managerial,

engineering, estimating, or other services

are performed for [other company] by or at

your Company?

6. What Supervisory functions are

performed by employees of your Company

Over employees of [other company ]?

7. What insurance or other benefits are

shared in common by employees of your

Company and the employees of [other

company ]?

8. What skills do the employees of

[other company] possess that employees of

your Company possess?

9. Please list all former employees of

your Company that are now employed by

[other company] and their job titles.

10. State whether [other company] is a

member of the Associated General

Contractors of Louisiana, Inc.

11. Does [other company] have separate

contractor license, bank account, books,

insurance policies, tax returns than your

Company?

12. Was there any leasing of equipment

between the two companies during the last

year and was it done by written agreement?

13. Was there any interchange of

employees in the field during the last

year between the two companies?

(The "other company" designated above

refers to the other companies mentioned in

Ae 23

In each letter, Laborde asserted that

it had come to the Union's attention that

the Contractor may have been in violation

of the contract between it and the Union

and stated the following reason for

requesting answers to the questions:

"This information is necessary and

relevant to the Union's administration of

the contract, and in furtherance of its

duty of fair representation to all

members." After receiving the letters and

prior to the filing of the charge under-

lying this case, a majority of the

Contractors wrote Laborde and asked him to

detail the reasons why he had requested

the information. The Union filed or

refused to provide any additional

information until the hearing, which was

held more than one year after Laborde had

requested the information from the

Contractors.

At the hearing, Laborde testified that

the Union needed the requested information

"(flor the purpose of negotiating and

representing the members of [his] Union,

because [he] felt that from the infor-

mation [he] had that these Companies had

double-breasted Companies and may be

violating [the] agreement [he] had with

them...." Tr. 19. Laborde also testified

that on January 12, 1979, the Board

conducted a representation election at

Claiborne Builders. The election was

conducted at the premises of Perrilliat-

Rickey Construction Company, Inc. Neither

Claiborne Builders nor Perrilliat-Rickey

were Respondents in the proceedings before

the Board or the Fifth Circuit Court of

Appeals. According to Laborde, Joe

Lemoine, an employee of Perrilliat-Rickey,

told him that Perriliat-Rickey had created

Claiborne Builders to compete against what

Laborde described as other "double-

breasted companies." Tr. 19-22.

Laborde also testified that sometime

in 1978 or 1979 he had been told by a

Union agent that the agent had observed

construction equipment bearing the name of

Leonard B. Hebert, Jr. & Co., one of the

Petitioners in this case, at the jobsite

of a nonunion contractor, Professional

Construction Services, Inc. Tr. 34-35.

Finally, Laborde testified that some

employees of Petitioner Boh Bros.

Construction Co., Inc., had resigned their

Union memberships and were working for a

nonunion company, Broadmoor Corporation.

Tr. 36-37. Broadmoor was not a Respondent

in the proceedings before the Board or the

Fifth Circuit Court of Appeals.

REASONS FOR GRANTING THE WRIT

I. THE DECISION IMPOSING A DUTY TO

DISCLOSE AND FINDING A VIOLATION EX

POST FACTO FOR FAILURE TO DO SO IS

INCORRECT.

The Decision is in Conflict with the

Decisions of Other Courts of Appeal.

An employer's duty to respond to a

union request for information concerning

matters outside central core bargaining

issues such as wages, hours, and working

conditions is not triggered until the

union first demonstrates to the employer

the relevancy of the requested information

to a legitimate union concern. San Diego

Newspaper Guild v. N.L.R.B., 538 F.2d 863,

867 (9th Cir. 1977). The duty to respond

is not triggered when the union merely

learns of facts which would give rise toa

legitimate concern. Those facts must be

communicated to the employer before a duty

to respond ever arises. Atlas Metal Parts

Cow, IRGC. Va Nib RG, SGU Ff. 26 3064,

310-311 (7th Cir. 1981); Soule Glass &

Giazing Co. v. N.L.R.B., 652 F.2a 10355,

1092-1100 (lst Cir. 39G1)+ 4.L.8.8. ¥.

Temple-Eastex, Inc., 579 F.24 932, 937, fi.

i (5th Cle. 1978): 8.1.8.8. wv. Western

Electric, Inc., 559 F.24 Li3i, 1133 (8th

Cie. 1977): 8.1.8.8. <. Rockwell-Standard

Corp., Trans. & Axle Div., 410 F.2a 353,

957 (6th Cir. 1969); Prudential Insurance

CO. VW. W.L.R.B., 412 PF. 328 77, 86 tind Circ.

1969), cert. denied, 369 U.S. 928 (1969);

United Furniture Workers v. N.L.R.B., 388

F.2d 880, 982 (4th Cir. 1967): Curtiss-

Wrignt Corp. v. N.L.R.B., 347 PF. 3a 61,

GS-69 (3rd Cir. 1965).

It is submitted that the Fifth Circuit

gravely erred when, in effect, it ruled

that an employer has a duty to respond to

a union request for information concerning

matters entirely outside the central core

bargaining issues when the union simply

learns of facts which might make its

request legitimate.

It is not disputed that the infor-

mation requested by the Union in the

instant case related to matters outside

the Union's central core duties as the

employees' collective bargaining repre-

sentative and, therefore, the requested

information was not presumptively

relevant. N.L.R.B. v. Leonard B. Hebert,

JX. & CO., Inc., @& a1., 696 F.2d 1120.

1124 (5th Cir. 1983). Accordingly, the

Union had the burden to show affirmatively

to each Employer the relevancy of the

requested information to a legitimate

Union concern affecting such individual

Employer before the corresponding

Employer's duty to supply information

could ever arise in this case. N.L.R.B.

Vv. Templie-Eastex, Inc., 579 F.2d 932, 937

n. 1 (Sth Cir. 1978). The question is

when must a union make the required

showing of relevancy in order to trigger a

duty by an employer to respond to the

union's request for information.

In the instant case, the Union mailed

letters to each of the ten Petitioner

Contractors requesting that they answer

certain questions concerning their

relationship with ten other separate

companies. Apparently in note 3 of the

panel majority's decision, the Fifth

Circuit ruled that the letters themselves

satisfied the Union's burden of estab-

lishing the relevancy of the information

that the Union sought which in turn

triggered the Petitioner's duty to

respond. If this is the panel majority's

holding, it is Clearly contrary to the

Ninth Circuit's decisions in N.L.R.B. Vv.

Associated General Contractors of

California, Inc., 633 F.2a 766 (9th Cir.

1980), cert. denied 352 U.s. 915 (1981)

and San Diego Newspaper Guild v. N.L.R.B.,

548 F.2d 863 (9th Cir. 1977) because the

letters indicate only a general

"suspicion" of possible contract

violations which is legally insufficient

to satisfy a union's burden of estab-

lishing the relevancy of the information

it seeks. The mere suspicion reflected in

the Union's letters that the Petitioners

may have engaged in double breasted

Operations does not satisfy nor meet the

Union's burden of showing relevancy for as

the Fifth Circuit noted "[a] double

breasted operation may or may not violate

® iaber contract." W.L.8.B. wv. Leonard B.

menert, JF. & Co., iItc., et Bis, 696 F.

4126, 1122 n.1 (Sth Cir. 1983). ‘The Boara

itself, by inference, has held that

letters similar to those sent by the Union

in the instant case are not in themselves

sufficient to establish the degree of

relevancy required to trigger a response

from an employer. Doubarn Sheet Metal,

Inc., 243 NLRB 821, 824 n. 13 (1979).

In the alternative, even if the panel

majority did not rule that the letters

alone were sufficient to trigger the

Contractors' duty to respond, it is clear

that the majority ruled that the Union's

reasons for requesting the information,

Submitted for the first time at the

hearing, were adequate to require a

response from all ten Contractors. If

this ruling is permitted to stand, it will

effectively eliminate the legal

distinction and corresponding differences

between a union's burden when the union

requests information concerning central

core bargaining subjects and when it

requests information concerning noncentral

core bargaining subjects.

An example will help illustrate the

Situation in which an employer (or a union

faced with a request from an employer) is

Placed by the Fifth Circuit's decision:

Step 1: The union mails a request for

information to the employer concerning

noncentral core bargaining matters, i.e.,

Subjects outside the scope of the

traditional wages, hours, and working

conditions, without Supplying, other than

in very general terms, its reasons for

requesting the information from the

employer;

Step 2: The employer analyzes the

union's request and determines that the

information is not of the type which is

presumptively relevant, i.e., it does not

concern wages, hours, or working

conditions, and responds to the union's

request by asking the union to demonstrate

the specific basis for its request, beyond

a mere suspicion or surmise, that the

collective bargaining agreement has been

violated:

3/ San Diego Newspaper Guild vy. 7.L.R.8.,

548 F.2d 863, 868 (9th Cir. 1977}.

ep |

Step 3: The union refuses or Simply

fails to provide the employer with any

additional information to establish the

relevancy of the information it requests

to its duties as the employees’ bargaining

representative even though at the time it

may have had in its possession sufficient

information to justify its inquiry;

Step 4: The employer refuses or fails

to provide the information requested by

the union on the basis that the union has

not shown the relevancy of the information

beyond a mere “suspicion or surmise" or

that the collective bargaining agreement

may have been violated;

Step 5: The union files an unfair

labor practice charge alleging that the

employer has refused to bargain by failing

to provide the requested information, and

the Board issues a complaint and conducts

a hearing to determine if there has been a

violation of the Act; and

Step 6: At the hearing, for the first

time, the union presents evidence that it

did indeed have information to support its

contention that the requested information

was relevant to its duties as the

employees’ bargaining representative and

that it had this information in its

possession at the time that it made its

Original request for information. On the

basis of this belated showing of

relevance, the employer is found by the

ALJ and the Board to have violated the Act

ex post facto even though the employer had

not been provided with the facts to

Support the union's claim of relevancy of

the information sought by it at the time

the employer was accused of violating the

act.”

4/ These steps are exactly what happened

in the instant case. The Union, through

Laborde wrote to each Contractor (J-3a, b,

a, 6, £. og, 5, 1, o. P, and v). Seven of

the Contractors wrote back and asked what

Under this scenario, an employer

would be required to provide the requested

information at the time of the union's

request, despite the fact that the

required showing of relevancy had not been

made, out of fear that the Union might

demonstrate relevancy later at a hearing.

By virtue of this decision, the Fifth

Circuit has effectively wiped out the

second tier of the two-tier test

previously approved by the Fifth Circuit

4/ (Cont'd) information the Union had to

support its general and completely

unsubstantiated assertion that the

collective bargaining agreement was being

violated by the Contractors (J=3, ¢, h, k,

m, P, t, and u). Nevertheless, Laborde

failed to provide any further information

to the Contractors until the hearing,

almost one and a half years after the

Union had requested the information from

the Contractors. It is important to note

that both Boh Bros. Construction Co.,

Inc., and Leonard B. Hebert, Jr. & Co.,

the two contractors against whom the Union

introduced evidence at trial concerning

relevancy, were among the Contractors that

wrote to the Union to request that it

Supply information to establish its burden

Of showing relevancy. The Union failed or

refused to respond to these inquiries.

in Temple-Eastex and adopted by every

Circuit that has considered the

eee Now any company that

refuses to provide information concerning

noncore bargaining matters at the time it

is requested without specification of

relevancy can be subjected to an ex post

facto conviction of an unfair labor

practice if the information as to

relevancy is provided later at the

hearing.

5/ Atlas Metal Parts Co., Inc. v.

N.L.R.B., 660 F.2d 304, 310-311 (7th Cir.

1981); Soule Glass & Glazing Co. v.

N.L.R.B., 652 F.2d 1055, 1092-1100 (lst

Cir. 1981); N.L.R.B. v. Temple-Eastex,

euCe, DIO Figd 932, 937, B. 1 Toth Cis.

1978); N.L.R.B. v. Western Electric, Inc.,

299 F.20 Lisl, 1133 (6th Cir. 1977); San

Diego Newspaper Guild v. N.L.R.B., 548

F.20 863, GOs (Sth Cir. 1977); 8.L.R.8. v.

Rockwell-Standard Corp., Trans. & Axle

Div., 410 F.2d 953, 957 (6th Cir. 1969);

Prudential Insurance Co. v. N.L.R.B., 412

F.2d 77, 84 (2nd Cir. 1969), cert. denied,

369 U.S. 928 (1969); United Furniture

Workers v. N.L.R.B., 388 F.2d 880, 982

(4th Cir. 1967); Curtiss-Wright Corp. v.

N.L.R.B., 347 F.2d 61, 68-69 (3rd Cir.

1965).

i deo

The Fifth Circuit's decision acts asa

trap for the unwary employer or union by

creating a meaningless two-tiered analysis

which ostensibly requires the requesting

party to demonstrate the relevancy of the

information it seeks before the other

party is compelled to respond to the

request. The two-tiered test is "“meaning-

less" because the requesting party is

permitted to demonstrate, for the first

time at a hearing, long after the initial

request for information, that it did

indeed have a sound basis for its request

for information.

Proper analysis of this problem is

hampered somewhat by the familiar role of

a hearing as the vehicle for eliciting

testimony; after all, this is what

hearings are for. However, the

Petitioners are criticizing the use of the

Union's rationale for seeking the

information from the Petitioners, which

was produced for the first time at trial,

in the same way that a criminal defendant

complains that the police may not produce

reasons for seeking a search warrant after

the search has been conducted. In both

cases the requesting party, be it police-

man or union, has a burden to establish

the relevancy (or probable cause) of the

information it seeks to a possible

contract (or criminal) violation. The

union must produce its evidence of a

violation before the employer should be

compelled to answer the union's questions,

just as the policeman must produce his

evidence to support his belief that he has

probable cause that a law has been

violated before a magistrate may issue a

search warrant. If the requesting party,

be it policeman or union, is permitted to

establish the basis of its request later,

the due process rights of the responding

Pa |

party, be it employer or Citizen, are

destroyed.

If the Court were acting as counsel

for an employer which had been Placed in

this position, could it ever advise the

employer not to provide the requested

information? How would the Court respond

to this question from their client --

"What do you mean they can show later on

that the union's request is relevant, and

I can be convicted? I thought I had due

process rights."

Ii. THE FIFTH CIRCUIT'S FINDING THAT THE

UNION HAD A SUFFICIENT BASIS FOR

REQUESTING INFORMATION FROM EIGHT OF

THE TEN PETITIONER COMPANIES BASED

SOLELY ON THEIR ASSOCIATION WITH EACH

OTHER IS ERRONEOUS AS A MATTER OF LAW

AND FACT.

The Decision is Contrary to Supreme

Court Precedent

The Board in its decision specifically

found that there was not sufficient

evidence to show that the ten Contractors

encompassed a multi-employer bargaining

6 /

unit.— Despite this finding and no

finding to the contrary by the panel, the

panel majority ruled that because the

Union's witnesses testified at the hearing

about possible contract violations

involving Boh Bros., Leonard B. Hebert,

and "other double-breasted companies that

were in the business that had agreements

with us," (Tr. 22) there was a basis for

enforcing the Board's order against all

ten Petitioners. Seizing upon this

testimony, the panel majority concluded

that the Union had sufficient information

to request information from all ten

Contractors and to require them to answer

the requests for information which were

clearly outside the central core of

bargaining issues.

The basis of the panel majority's

decision is its finding that "it is clear

that all of the companies bargained with

6/ Decision and Order, 2 n. 2.

the Union through the voice of the AGC,

and it is reasonable to Suppose that the

labor policies of the companies are

Similar." N.L.R.B. v. Leonard B. Hebert,

wis & CO., THhe.. et Sis, Be 2263 a. &.

This conclusion is Simply not Supported by

any facts. On the contrary, the majority

has found the ten Contrators in violation

Of an Act of Congress based on the fact

that these Contractors happen to all be

members of the same trade association. Is

this what this Court intended when it held

that the Board's findings may be sustained

Only if supported by substantial evidence

On the record as a OE! To state

the proposition is to reject it. If this

were the law, no company would join a

trade association for fear that mere

membership would result in a conviction

for Violating an Act of Congress due to

7/ Universal Camera COrD. V. N.L.R.B..,

340 U.S. 474 (i951).

the conduct of some otherwise unaffiliated

member of the assocation.

Even if there were facts to show that

the labor policies of the Contractors are

the same or similar, there would still be

no basis for concluding that the Union had

sufficient justification for requesting

the information from the eight Contractors

of whom it had no specific knowledge of

possible collective bargaining violations:

Landis Construction Co., Inc.; American

Gulf Enterprises, Inc.; Gurtler-Hebert &

Co., Inc.; Pittman Construction Company,

Inc.; Bartley, Inc.; Binnings Construction

Co., Inc.; Gervais Farvot Company, Inc.;

8 /

and Pratt-Farnsworth, Inc.

8/ In his dissent, Judge Garwood stated

that there was no evidence presented upon

which the Union could legitimately request

the information from seven of the ten

Contractors. It is submitted that there

was also no evidence concerning

Pratt-Farnsworth other than the fact that

the Union had filed a lawsuit against this

Contractor. This fact alone would not be

the “particular special circumstances"

Absent this totally erroneous

conclusion, there is no evidence to

Support the majority's finding of

relevancy of the information requested to

the Union's bargaining relationship with

eight of the ten Contractors. it is

Submitted that even if it be founda that

the Fifth Circuit was correct in its

ruling involving Boh Bros. and Leonard B.

Hebert, Jr. & Co., Inc., the ruling as it

relates to the other eight Contractors

should be reversed as it is not supported

by any evidence.

III. THE FIFTH CIRCUIT'S FINDING THAT THE

REASONS OFFERED AT THE ADMINIS-—

TRATIVE HEARING WERE SUFFICIENT TO

SATISFY THE UNION'S BURDEN OF

SHOWING THE RELEVANCY OF THE INFOR-

MATION IT SEEKS IS INCORRECT

Even considering the after-the-fact

reasons offered by the Union at the

8/ (Cont'd) which would make the request

by the Union relevant and trigger the duty

to respond by Pratt-Farnsworth.

hearing, the Union has not shown a

relevant need for the information. In

fact, the evidence clearly shows that the

answers to the questions were sought for a

completely irrelevant purpose; therefore,

the Contractors were under no obligation

under the Act to provide the information

even after the Union articulated more

detailed reasons for requesting the

information at the hearing. "The first

question in such a case is always one of

relevance. If the information requested

has no relevance to any legitimate union

collective bargaining need, a refusal to

furnish it could not be an unfair labor

practice." Emeryville Research Center v.

N.L.R.B., 441 F.2d 880, 883 (9th Cir.

1971). "Moreover, the question is not

whether requested information is

abstractly or theoretically relevant to

the performance of a union's statutory

duties, but whether it is actually

relevant under the ‘circumstances of the

particular case.‘" f.0.8. wv. N.L.R.B.,

650 F.2d. 334, 338 (D.c. Cir. 1980)

(dissenting opinion), Citing N.L.R.B. y.

Truitt Mfg. Co., 351 U.S. 149 (1956).

There is no better evidence of the

irrelevancy of the requested information

than the reasons articulated by the Union

at the hearing for requesting the

information.

Reason 1 -- Administration of the

contract. The Union contended that it

could not properly administer the contract

between it and the various Contractors

without the requested information. This

certainly was not the true reason,

however, as there have been contracts in

existence between the Union and the

various Contractors since at least 1970,

and the Union never requested the

information before 1980. ‘The fact that

the Union proposed subsidiary clauses,

which would have covered the other

companies under the contract by the

express terms of the clause, as early as

1971 indicates that the Union knew of the

existence of the other companies for at

least nine years prior to requesting the

information. Why then did all of a sudden

the Union need the information in 1980 to

"administer the contract" if this was the

true reason the information was requested?

Why did the Union wait until after it

unsuccessfully attempted to organize

Claiborne Builders, one of the so-called

"double breasted" companies?

Reason 2 -- To further the Union's

duty of fair representation to all

members. No party attempted to introduce

any evidence at the hearing that would

show that the Union needed the requested

information to further its duty of fair

representation to all members. As nothing

in the record indicates that the Union

represents any employees for the purposes

Of collective bargaining who worked for

the other companies, the Union obviously

did not need the information for this

stated purpose, and the Union failed to

meet its burden of proving the relevancy

of the information under this stated

reason.

Reason 3 -- For the purpose of

negotiating. The Union alleged that it

needed the information in order to bargain

effectively with the Contractors. The

uncontradicted evidence, however, is that

despite ample Opportunity to do so, the

Union never brought up the subject of

needing answers to the questions during

the 1980 bargaining session. And, during

the same sessions, the Union never made

any reference to the fact that it could

not bargain effectively without the

information. If the Union truly needed

the information for bargaining purposes,

why then did the Union make no mention of

its request in the 1980 bargaining

sessions? "If the Union wanted infor-

mation it believed relevant to collective

bargaining, it was incumbent upon Union's

negotiators, as a first step, to request

that information from [the Employer] at

the bargaining table." I.U.E. v.

N.L.R.B., 650 F.24 at 339 (diesentineg

opinion). The proffered reason of needing

the information for bargaining purposes --

to see if the other companies were paying

less pay and benefits -- cannot be the

true reason as none of the questions

sought information relating to the pay and

benefits of the other companies.

Laborde also stated that another

reason the Union needed the information

was to see if any of the Contractors were

placing more work in the other companies

rather than retaining the work them-

selves. This cannot be the true reason

either, as the Union did not ask for any

information concerning the number of

employees, the number of hours worked by

those employees, or the volume of business

of the other companies. Thus, even if the

Contractors had answered the questions to

the Union's satisfaction, the Union would

still not have information which would

assist it in bargaining for the reasons

set forth by it at the hearing.

Reason 4 -- To see if any Contractor

was acting as a single, integrated

employer with any of the other companies.

This seems to be the Union's primary

stated purpose for requesting the infor-

mation. However, this reason must also

fail because it is clear that the Union

already knew that Perrilliat-Rickey and

Claiborne Builders were operating as

separate employers when it requested the

same information from Perrilliat-Rickey

concerning its relationship with Claiborne

Builders as it requested from the

Petitioners and the other companies. At

the time of the request, the Union had a

decision from the Acting Regional Director

of the Fifteenth Region which stated that

Claiborne Builders was a separate

employer. Additionally, the Union must

have had enough information to conclude

that Pratt Farnsworth and Halmar, Inc.

were operating as a single integrated

employer, as the Union filed a lawsuit in

April, 1980, alleging just that. Surely,

the Union would not have made such an

allegation without having substantial

facts to back it up. Since the Union

already had this information, the Union

had no need for the information requested

in the letters to Perrilliat-Rickey and

Pratt Farnsworth for the stated purposes

for which it was requested. This clearly

shows that the Union's stated reason was

pretextual.

Furthermore, if in fact the Union

wanted to find out if any of the

Petitioners and the other companies were

Operating as single, integrated employers,

the Union could have filed a unit clarifj-

cation (UC) petition with the Regional

Director of the Fifteenth Region. Surely,

a hearing on a UC petition would have

settled the question once and for all and

would have provided a proper forum for

asking the same questions and obtaining

answers that the Union sought. The fact

that the Union has not filed such a

petition concerning any of the Contractors

nor any of the other companies shows that

the Union could not have desired the

information for the proffered reason.

The fact that the Union was unable to

show the relevancy of any of its requests

or a relevant reason for making the

requests, coupled with the unbelievable

testimony that the catalyst for the

Union's sending the letters to the

Contractors was a conversation which

occurred thirteen months earlier, leads to

only one conclusion -- the Union must have

had another purpose in mind when

requesting the information. The only

other possible purpose brought forth at

the trial was that purpose mentioned by

Union witness Paulino -- "to try to

organize all the non-Union Companies that

we felt were offsprings from Union

Companies." Tr. 65. It is clear that the

Union would not openly state that it was

seeking the information for organizational

purposes, because it knows that it would

not be entitled to the information for

such purposes. This is why the Union has

disguised the request under general terms

such as "to police the contract" and '<s

better represent its members." However,

under any type of scrutiny, all of the

proffered reasons show marked

inconsistency and unreliability. There

are simply too many holes in the Union's

articulated reasons to credit any of them

and to support a finding of substantial

evidence.

If the Union truly believed that the

contract was being violated by any

Contractor, the Union could have filed a

grievance and obtained relevant infor-

mation from the Contractors concerning the

alleged contract violations. But the

Union chose not to file a grievance

against any of the Contractors.

The failure of the Union's proffered

reasons leaves organizational purposes as

the only possible reason. However, the

Petitioners are under no Obligation to

assist the Union in organizational

activities among their employees much less

assisting them in Organizing efforts

directed against third parties, as is the

case here. The Union has not Only failed

to meet its burden of showing that it

requested the information from any of the

Contractors for any legitimate bargaining

Or representation purpose, but on the

contrary, it is obvious the answers to

Such questions were sought for a

completely irrelevant purpose. Therefore,

the Petitioners were under no obligation

to furnish the information and, therefore,

did not violate the Act.

Section 10(e) of the National Labor

Relations Act [29 U.S.C. §160(e)] states

that "(t]he findings of the Board with

respect to questions of fact, if supported

by substantial evidence on the record as a

whole, shall be conclusive." (Emphasis

Supplied.) In Universal Camera v.

N.L.R.B., 340 U.S. 474 (1951), this Court

stated that a reviewing court can set

aside a Board decision when it cannot

conscientiously find that the evidence

Supporting that decision is substantial

when viewed in light of the record in its

entirety, including the body of evidence

Opposed to the Board's view. 340 U.S. at

488-90. The Petitioners strongly suggest

that a thorough review and analysis of the

record in this case will lead the Court to

reverse the factual conclusions determined

by the ALJ, rubber-stamped by the Board,

and approved by the Fifth Circuit and to

conclude that there is not substantial

evidence on the record to support the

Board's findings and order.

CONCLUSION

For the foregoing reasons, the

Petition for Writ of Certiorari should be

granted.

Respectfully submitted, this Jat day

Of May, 1963.

mm £84”

WILLIAM E. HESTER III

(COUNSEL OF RECORD)

7 » ig i

Kbae Li, ot Cha bee’,

CHARLES H. HOLLIS

Kullman, Lang, Inman & Bee

A Professional Corporation

Post Office Box 60118

New Orleans, Louisiana 70160

Telephone: (504) 524-4162

COUNSEL FOR PETITIONERS

CFORT LF IT CAT &

I, Wiliam E. Hester III, certify that

three copies of the above and foregoing

Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Fifth Circuit have been served this 9

day of May, 1983, by United States mail,

upon:

Mr. Elliott Moore

Deputy Associate General Counsel

National Labor Relations Board

Office of the General Counsel

1717 Pennsylvania Avenue, N.W.

Washington, D.C. 20570

and

Mr. Rex E. Lee

Solicitor General of

the United States

U. S. Department of Justice

Washington, D.C. 20530

(Naser &. Weber TI

APPENDIX "A"

NATIONAL LABOR RELATIONS

BOARD, Petitioner,

Vv.

LEONARD B. HEBERT, JR. & CO.,

INC. AND Landis Construction Coe,

Inc., et al., Respondents.

No. 82-4085

United States Court of Appeals,

Fifth Circuit.

van. 31, 1963.

After National Labor Relations Board

found that construction employers had

violated National Labor Relations Act by

refusing to furnish information requested

by union and ordered its disclosure, Board

petitioned court for enforcement of its

Order. The Court of Appeals, Reavley,

Circuit Judge, held that: (1) union met

its burden of showing that requested

information as to whether construction

employers were utilizing double-breasted

operations to evade their contractual

obligations to unions was relevant to

performance of union's duty; (2) infor-

mation was not irrelevant on grounds that

union already knew that two construction

employers were utilizing double-breasted

Operations and that if union had wanted to

find out if any other companies were

involved in such operations, union could

have filed union clarification petition

with Board; and (3) fact that information

might be helpful to union in organi-

zational campaign did not render it

irrelevant for purposes requested or

otherwise excuse employer's nonproduction.

Application for Enforcement of an

Order of the National Labor Relations

Board.

Before GARZA, REAVLEY and GARWOOD,

Circuit Judges.

REAVLEY, Circuit Judge:

This appeal represents the latest

round in litigation involving Carpenters

District Council of New Orleans and

Vicinity Local Union No. 1846 (the

“Union") and various employers of union

and nonunion construction workers in the

New Orleans area. On March 14, 1980, the

Union filed formal charges with the

National Labor Relations Board ("NLRB" or

the "Board") against ten employers (the

“employers" or "“companies") alleging that

the employers had engaged in unfair labor

practices within the meaning of §§8(a) (1)

and (5) of the National Labor Relations

Act, 29 U.S.C. $$158fa)(1) and (5) (the

"Act"). The basis of the complaint was

that the employers had refused, in

derogation of collective bargaining

agreements existing among the parties, to

disclose information that would assist the

Union in determining whether the employers

were utilizing "double-breasted"

Operations to evade their contractual

obligations toward the Union. The NLRB,

upholding a decision of an administrative

law judge ("ALJ") found that the named

employers had violated §§$8(a)(1) and (5)

of the Act by refusing to furnish the

requested information and ordered its

disclosure. The Board petitions this

court for enforcement of its order and we

enforce it in all respects.

1/ We recently explained how a "double-

breasted" or "open shop/closed shop"

operation works in Florida Marble

Polishers Health & Welfare Trust Fund v.

Edwin M. Green, Inc., 653 F.2d 972, 976 Nn.

# (Sth Cir. i96Gl), cert. denied, U.S.

« £02 S. Ce. 2234, 72 bh. Ga. 24 Bae

(1982). Such an operation is one allowing

an employer to compete for both union and

nonunion work. For instance, a subcon-

tractor will operate two corporations, one

hiring strictly union employees; the

other, nonunion employees. The former

will bid on jobs from general contractors

who utilize ony [sic] unionized subcon-

tractors; the latter bids only on work

from general contractors who use nonunion

workers. Id. A double-breasted operation

may or may not violate a labor contract.

Each of the ten companies involved in

this litigation is a member of the

Associated General Contractors of

Louisiana, Inc., New Orleans District

("AGC-New Orleans" or "AGC"), a trade

organization consisting of construction

contractors. Although the companies’

position as to whether AGC-New Orleans

constitutes a multi-employer bargaining

unit (a question we need not decide) is

unclear from the record, it

2/ At oral argument, counsel for the

companies vigorously denied that AGC-New

Orleans constitutes a multi-employer

bargaining unit collectively representing

all of the employers. The record reflects

that counsel earlier filed written

exceptions to the ALJ's decision specifi-

cally objecting "[tJo the finding that the

[companies] deny the existence of a multi-

employer bargaining unit." In any event,

AGC's status as an official multi-employer

bargaining unit is irrelevant to our

present decision because, as explained

more thoroughly in text, it is clear that

AGC conducted the actual collective bar-

gaining on behalf of the employers with

the Union, even though AGC did not itself

appears that AGC has engaged in joint

bargaining with the Union on behalf of the

companies, which has resulted in the

execution of collective bargaining

agreements between the Union and the

employers. AGC is not a signatory to

these agreements, but the individual

employers are. Such agreements have been

in effect since at least 1961, thus

covering the time span of the factual

events involved in this case. Collective

bargaining agreements in effect from May

1, 1977 through April 30, 1982 contained a

“recognition clause" acknowledging the

Union as the exclusive representative of

each signatory employer's carpenters. The

contracts did not contain a “subsidiary

clause," however, whereby the agreements

2/ (Cont'd) become a signatory party to

the final agreements. Moreover, AGC is

not a defendant in this action and has not

itself been ordered to disclose any

information.

would have applied to any double-breasted

counterparts operated by the employers.

The Union had negotiated for such a

provision in 1971 and again in 1974 but

was unsuccessful in getting the companies

to agree to it. The Union did not

negotiate for a subsidiary clause there-

after because it lacked sufficient infor-

mation confirming--and the companies

denied maintaining--any double-breasted

Operations.

Despite the fact that the companies

involved here denied double breasting, the

Union was presented with evidence from

time to time that tended to indicate

Otherwise. For example, the record

reveals that in 1979 the Board held a

representation election at Claiborne

Builders, a New Orleans construction

employer not involved in the instant case.

Two Union officials, Davy Laborde, Sis,

and James Paulina, Jr., were present to

insure that the election was conducted

fairly. Laborde noticed that the election

site was also the premises of

Perrilliet-Rickey Construction Company

("Perrilliet"), an employer who was then a

member of AGC-New Orleans and a party to

the collective bargaining agreement with

the Union. When Laborde commented on

this, the treasurer of Perrilliet, Joe

Lemoine, told Laborde and Paulino that

Perrilliet had formed Claiborne as a

nonunion, double-breasted subsidiary for

the purpose of competing against the

double-breasted operations of other AGC

members who had agreements with the Union.

Lemoine then apparently specified several

AGC member/employers that utilized

double-breasted operations.

The record also reveals that on

another occasion, a Union agent observed

construction equipment bearing the name of

Leonard B. Hebert, Jr. & Co., one of the

employers involved in this case, at the

job site of a nonunion contractor,

Professional Construction Services,

Later, a Hebert Superintendent intimated

to Laborde the existence of an affiliation

between Hebert and Professional.

Finally, record evidence reveals that

another New Orleans construction employer,

Boh Bros. Company (a respondent in this

case) created a nonunion counterpart,

Broadmoor Corporation. Boh Bros. was a

party to collective bargaining agreements

with the Union and was a member of AGC.

Employees of Boh Bros. informed Laborde

when they relinquished their union

membership that they were gOing to work

for Broadmoor Corporation. Thereafter,

Laborde actually observed former union

members working at a Broadmoor

Construction site.

Based on this type of information, the

Union sent to each of the ten respondent

companies a letter requesting information

concerning possible double breasting.

These letters were mailed between January

18 and February 12, 1980.2! None of

the companies provided the requested

information. Interestingly, five of the

ten companies responded (each separately)

with letters that read identically,

word-for-word, asking the Union to

disclose "detailed" reasons justifying its

request for information.

In the meantime, collective bargaining

negotiations between the Union and AGC, on

3/ Each letter requested answers to 13

questions designed to determine the

extent, if any, of the affiliation between

the employer/addressee and its alleged

double-breasted counterpart which was

specificaly named in the letter. For

example, the questions inquired as to the

existence of common management or owner-

ship between the companies and whether

they shared customers or equipment. We

believe that the letters set forth

sufficient background information about

the focus and nature of the Union's

inquiry to put the employer/addressee on

notice of the basis of the Union's

Suspicion concerning double breasting.

behalf of the employers, commenced

regarding renewal of the agreement that

was to expire on April 30, 1980. Laborde

testified before the ALJ that Robert Boh,

President of both AGC and Boh Bros.

Company, commented disparagingly during

the course of these negotiations on the

Union's letter and subsequent filing of

unfair labor practice charges with the

Board. Boh denied this during testimony

before the ALJ, but the ALJ made a

credibility determination that Laborde's

version of the events was more believable.

il.

Well-established labor law precedent

imposes upon employers a duty "to provide

information that is needed by the

bargaining representative for the proper

performance of its duties." NLRB v. Acme

industrial Co., 385 U.S. 432, 435-36, 87

Be Ct. 565, Soe, 17 &. Bd. 2a 495 (1967).

An employer's refusal to furnish

information relevant to a union's

negotiation or administration of a

collective bargaining agreement may

constitute a breach of the employer's duty

to bargain in good faith in violation of

§8(a)(5) of the Act, 29 U.S.C. §158(a) (5).

NLRB v. Acme Industrial Co., supra, 385

U.S. at 435-36, &S7 &S. Ce. at 567-68:

Detroit Edison Co. v. NLRB, 440 U.S. s3Ql,

303, 939 &.Ct. 1izgd, 1125, $3 &. Ba. 2d 333

(1979).

The situation here is virtually

indistinguishable from one faced recently

by the Ninth Circuit. NLRB v. Associated

General Contractors of California, Inc.,

633 F.2d 766 (9th Cir. 1980), cert.

denied. 452 U.S. 915. iG) &. Ce. 3049, 69

L. Ed. 2d 418 (1981). As Associated

General Contractors explains, the key

inquiry is whether the information sought

by the Union is relevant to its duties.

633 F.2d at 770. The Supreme Court has

adopted a liberal, discovery-type standard

by which relevancy of requested infor-

mation is to be judged. Id.; Acme

Incustrialt Co.,. 365 U.S. at 436 & a. 6. 87

S. Ct. at 568-69 & n. 6. Information

intrinsic to the employer-union relation-

ship, such as that pertaining to wages and

other financial benefits, is considered

presumptively relevant, with the employer

having the burden of showing irrelevance.

Associated General Contractors, 633 F.2d

at 770 n. 4a. Where, however, a union

seeks information not ordinarily pertinent

to its performance as bargaining

representative, but alleged to have become

relevant due to particular circumstances,

no presumption exists and the union has

the initial burden of establishing

relevancy before the employer must comply.

San Diego Newspaper Guild v. NLRB, 548

F.26 863, 867 (Sth Cir. 1977).

Information of the type sought by the

Union in this case does not appear to be

presumptively relevant, see Associated

General Contractors, 633 F.2d at 770, and

thus the Union here has the initial burden

of showing relevancy.

We hold that the Union has met that

burden. As recounted earlier, the Union

had numerous indications (before it made

its request) that several member/employers

of AGC-New Orleans had created double-

breasted Operations to evade contractual

obligations toward the Union. Some of

these indications were indirect, such as

the statement to Laborde from a third

party (Lemoine) that many employers were

utilizing double-breasted operations.

Other indications were direct, such as

Laborde's observation of formerly union

employees working at a Broadmoor

Corporation construction site after these

employees had told Laborde they were

relinquishing their union membership in

Order to go to work for the double-

breasted counterpart of Boh Bros. This

evidence acquired by the Union before it

requested the information, and testified

to at the hearing before the ALJ, formed a

reasonable basis for further investigation

of the suspected double breasting. This

is to say that the type of information

sought by the Union would assist it in

confirming its suspicions and thereby

allow it to make an informed

uke whether to pursue legal

means by which it could hold the nonunion

companies to the terms of the collective

bargaining agreements involved here. For

4/ See Acme Industrial Co., 385 U.S. at

436 nm. &, Gi &S. CO. at S69 nz BG, quoting

Fafnir Bearing Co. v. NLRB, 362 F.2d 716,

721 (2d Cir. 1966) ("By preventing the

Union from conducting these studies [for

an intelligent appraisal of its right to

grieve], the Company was, in essence,

requiring it to play a game of blind man's

bluff") (bracketed changes appearing in

Supreme Court opinion).

as we recently had occasion to explain in

depth, in an appeal involving some of the

same parties now before us, two separate

methods exist by which a nonunion employer

may be held to the terms of a collective

bargaining agreement executed by its

alleged union counterpart: the single

employer doctrine and the alter ego

doctrine. Carpenters Local Union 1846 v.

Pratt-Farnsworth, Inc., 690 F.2d 489,

504-09 (5th Cir. 1982). Our opinion in

Pratt-Farnsworth answers the contention by

the employers that the sought-after

information is irrelevant to the adminis-

tration and enforcement of existing

collective bargaining agreements, to the

Union's duty of fair representation for

its members, or to its ability to bargain

effectively with the companies concerning

future contracts.

The employers also argue that the

information is irrelevant because the

Union already knew that two construction

employers in the New Orleans area,

Perrilliet-Rickey and Pratt-Farnsworth,

utilized double-breasted

operations. Moreover, the

5/ The employers raise the related

argument that just because the Union had

evidence of double breasting with regard

to some of the companies, such as Boh

Bros., Pratt-Farnsworth, and the Hebert

Co., the Union should not be allowed to

use this evidence as support for a request

for information about the other companies.

Indeed, the hearing before the ALJ reveals

that the Union did not put on evidence of

possible double breasting with regard to

some of the ten respondent companies, at

least specifically by name. This fact

does not provide a valid defense to

nondisclosure for those companies,

however, for two reasons. First, the

Laborde-Lemoine conversation gave the

Union reason to believe there was double

breasting by most, if not all, of the

member contractors of AGC-New Orleans.

Second, although it is unclear whether

AGC-New Orleans constitutes a multi-

employer bargaining unit here, it is clear

that all of the companies bargain with the

Union through the voice of AGC, and it is

reasonable to suppose that the labor

policies of the companies would be

similar. Furthermore, as we emphasize

repeatedly in the text, allowing the Union

access to the information does not prove

or conclude anything on the merits about

employers contend that if the Union wanted

to find out if any of the other companies

were involved in double breasting, it

could have filed a unit clarification

petition with the NLRB. We reject these

arguments for several reasons.

First, they misread the standard by

which the relevancy of the information is

to be judged. As noted earlier, a

disclosure request is examined under a

liberal, discovery-type standard. The

Union need only be "acting upon the

probability that the desired information

Cis] relevant, and that it would be of use

to the union in carrying out its statutory

duties and responsibilities. MThis

discovery-type standard decide[s] nothing

about the merits of the union's

5/ (Cont'd) the existence of double

breasting; the information is, however,

discoverable under the liberal,

discovery-type standard set out in Acme

Industrial Co.

contractual claims." Acme Industrial Co.,

365 U.S. at 437, G7 &. Ce. at 368

(footnote omitted). "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." Associated

General Contractors, 633 F.2d at 771.

Second, whatever information the Union

possessed with regard to Perrilliet-Rickey

and Pratt-Farnsworth could not answer the

Union's suspicions about the other

companies involved here. Perrilliet-

Rickey is not even a respondent in this

case.

6/ Perrilliet-Rickey is not involved in

the present litigation and yet one of the

primary reasons the Union suspected double

breasting with regard to the companies

here is because of the conversation

between Laborde and Lemoine recounted

earlier in the text.

Third, the Union need not take the

formal action of filing a unit

Clarification petition with the Board

before it can discover the information.

Again, the liberal discovery-type standard

refutes such an argument. See Acme

industrial Co., 385 U.S. at 437-38, 87 s.

Ct. at 568-69. Moreover, if the Union

were later to file charges for breach of a

collective bargaining agreement against

one of the employers under an alter ego

theory, as opposed to the single employer

doctrine, the Board would probably have no

occasion to reach the question of the

appropriateness of the representational

unit. Pratt-Farnsworth, Inc., 690 F.2d at

508-09.

The employers raise one final defense

to disclosure of the information. They

argue that the only possible reasons that

the Union desired the information was for

organizational purposes, i.e., for the

purpose of "unionizing" the double-

breasted counterpart companies. The fact

that the information might be helpful to

the Union is an organizational compaign

does not render it irrelevant, for the

purposes requested or otherwise excuse its

nonproduction, however. Associated

General Constractors, 633 F.2d at 772,

accord Utica Observer-Dispatch v. NLRB,

229 F.20 575, S77 (26 Cit. i956).

In conclusion, we agree with the Board

that the Union's request was one for

relevant information, that the employers

have not shown any persuasive reasons for

nondisclosure, and that their failure to

disclose constitutes an unfair labor

practice under $§$8(a)(1) and (5) of the

National Labor Relations Act.

Accordingly, it is ordered that the

Board's order be in all respects

ENFORCED.

GARWOOD, Circuit Judge, dissenting:

I respectfully dissent. As to seven

of the ten respondents (e.g., all

respondents other than Hebert, Farnsworth

and Boh), it is plain to me that the

complainant Carpenters Union wholly failed

to discharge its admitted burden of

“showing . . . relevance and need" and

“failed to show that the information was

actually relevant to the situation as it

then existed," .as its evidence amounted to

no “more than mere ‘suspicion or

Surmise.'" San Diego Newspaper Guild

Local Ho. 95 v. N.L.R.B., 548 F.2d 863,

S668 (Sth Cir. 1977). Gee also W.L.8.8. ¥.

Temple-Eastex, Intc., 579 F.2€ 932, 937 n.

lL (Sth Circ. 1978).

With respect to these seven

respondents, the Union relied primarily on

the testimony of its business agent

Laborde as to what Lemoine, an officer of

Perrilliet, a contractor not a respondent

herein, had told Laborde in a conversation

occurring more than a year before the

Union sent the letters in question.

According to Laborde, Lemoine said

Perrilliet had formed a nonunion "double-

breasted" company in order to "compete

against" "the other contractors who had

agreements with us" that had done so, "and

he named a bunch of them that had the

double-breasted companies." There is no

indication that any of these respondents

were among the companies named by Lemoine.

As it was the Union's burden to show its

entitlement to the information requested

of these respondents, and as what Lemoine

Said was peculiarly within the knowledge

of the Union officer and witness Laborde,

the only fair assumption is that Lemoine

did not include any of these respondents

among the "bunch of" double-breasted

contractors he identified. It this

indicates anything, it is that these

respondents were not engaged in the

practice the Union sought to investigate.

The other "evidence" relied on by the

Union respecting these seven respondents

is that they, in common with the other

respondents, were members of the New

Orleans AGC, and that there were indi-

cations several AGC members, not including

any of these seven respondents, had

"double-breasted" companies. There is not

a shred of evidence, however, that the

practices of AGC members in respect to a

matter such as this were normally uniform.

Indeed, there is no evidence whatever as

to the degree of uniformity or diversity

of practice in this or any similar regard

among AGC members. The majority's state-

ment (note 5) that "it is reasonable to

Suppose that the labor policies of the

companies would be similar" (emphasis

added) is without any support in the

record, and is the kind of guilt-by-

association approach which our courts have

so long and so vigorously eschewed. If

this is not "mere 'suspicion or surmise,

then what do these words mean?

Reliance in this respect on N.L.R.B.

v. Associated General Contractors, 633

F.2d 766 (9th Cir. 1980), cert. denied,

452 U.S. 3915, 101 S&S. Ct. 3049, 69 lL. Ea.

24 418 (1981), is wholly misplaced. In

the AGC case, there was a multi-employer

bargaining unit, and the AGC was the party

with which the Union contracted. Evidence

indicating that some of the AGC members,

who were covered by this contract, engaged

in "double breasting" was held to justify

the Union's request for information from

the AGC. In other words, there was

evidence of "double breasting" for which

the party from whom the information was

sought was contractually responsible to

the Union requesting the information.

Here, by contrast, the Board, in the order

which the majority enforces, has found

"insufficient evidence to establish the

existence of a multiemployer bargaining

unit." Moreover, none of the requests for

information herein issued were made to the

New Orleans AGC, and it is not even a

respondent. Rather, the requests were

made severally to the individual

respondent companies, and they indi-

vidually and severally are respondents in

this unfair labor practice proceeding. So

far as this record shows, we have treated

General Motors and Chrysler just like

Chevrolet and Pontiac.

There are other glaring deficiencies

in the proof. Not only is there no

evidence of any "double breasting" by

these seven respondents, there is indeed

no evidence whatever of any relation

between them and their respective assumed

siblings concerning whom the Union made

inguiry. Nor is there any showing that

the assumed siblings employ any carpenters

or are even in the construction business.

The majority purports to recognize the

settled distinction between information

normally intrinsic to the employer-

employee relationship, which is considered

presumptively relevant, with the employer

having the burden to show otherwise, and

information, such as that here sought,

which is not ordinarily pertinent to the

Union's relationship with the employer

from whom it is requested, but may be

relevant due to the existence of

particular special circumstances, as to

which the Union has the initial burden of

showing relevancy. However, if this

distinction has any validity and subserves

any purpose, then in the second class of

case some character of showing, beyond

"mere ‘suspicion and surmise,'" must be

required of the Union in regard to the

particular employer from whom the

information is sought and who is made

respondent in the unfair labor practice

proceeding. Since no such showing has

been made as to these seven respondents, I

respectfully dissent.

APPENDIX "B”

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 82-4085

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

versus

LEONARD B. HEBERT, JR. & CO., INC. AND

LANDIS CONSTRUCTION COMPANY, INC., ET AL.

Respondents.

Application for Enforcement of an Order of

the National Labor Relations Board

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING EN BANC

(Opinion 1/31/83 , 3S Che., 196,

F.2d Is

(April 1, 1983)

Before GARZA, REAVLEY and GARWOOD,

Circuit Judges.

PER CURIAM:

(X) The Petition for Rehearing is DENIED

and no member of this panel nor judge in

regular active service on the Court having

requested that the Court be polled on

rehearing en banc, (Rule 35 Federal Rules

of Appellate Procedure; Local Fifth

Circuit Rule 16) the Suggestion for

Rehearing En Banc is DENIED.

( ) The Petition for Rehearing is DENIED

and the Court having been polled at the

request of one of the members of the Court

and a majority of the Circuit Judges who

are in regular active service not having

voted in favor of it, (Rule 35 Federal

Rules of Appellate Procedure; Local Fifth

Circuit Rule 16) the Suggestion for

Rehearing En Banc is also DENIED.

( ) A member of the Court in active

service having requested a poll on the

reconsideration of this cause en banc, and

a majority of the judges in active service

not having voted in favor of it, rehearing

en banc is DENIED.

ENTERED FOR THE COURT:

United States Circuit Judge

APPENDIX “c*

JD-217-81

New Orleans, La.

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

LEONARD B. HERBERT JR. & CO.,

INC.: LANDIS CONSTRUCTION

COMPANY, INC.: PRATT FARNSWORTH,

INC.: BOH BROS. CONSTRUCTION

CO., INC.: AMERICAN GULF

ENTERPRISES, INC.: GUTLER

HERBERT & CO., INC.: PITTMAN

CONSTRUCTION COMPANY, INC.:

BARTLEY, INCORPORATED:.

BINNINGS CONSTRUCTION Co.,

INC.: GERVAIS F. FAVROT

COMPANY, INC.

and Case No. 15-CA-7622

CARPENTERS DISTRICT COUNCIL OF

NEW ORLEANS & VINCINITY AND LOCAL

UNION 1846

Charlotte N. White, for the General

Counsel.

Jerry L. Gardner, Jr., Barker,

Boudreaux, Larry Gardner & Foley,

Of New Orleans for the Charging

Party.

William E. Hester, III and Frederick A.

Kullman, Kullman, Lang, Inman & Bee,

of New Orleans for the Respondents.

DECISION

Statement of the Case

THOMAS R. WILKS, Administrative Law

Judge: This case was heard on February

24, 1981 at New Orleans, Louisiana,

pursuant to a complaint issued by the

Regional Director of Region 15 on August

6, 1980 which alleged that the above

captioned Employers, herein referred to

individually and collectively as

Respondents violated Section 8(a)(5) and

(1) of the Act by refusing to bargain good

in faith with the above captioned labor

organization, herein referred to as the

Union, in that they refused to furnish the

Union with certain information. The

Respondents filed an answer denying the

commission of any unfair labor practices.

Upon the entire record, my observation

of witnesses, and consideration of the

post-hearing briefs, I made the following:

Findings of Fact

I. Business of the Respondents

With the exception of Pittman

Construction Company, Inc., which is a

Delaware corporation, the following named

Respondents are Louisiana corporations

which, in addition to Pittman Construction

Company, Inc., maintain offices and

facilities in the New Orleans, Louisiana,

metropolitan area where they engaged in

the building and construction business:

Leonard B. Herbert, Jr. & Co., Inc.

Landis Construction Company- Inc.

Pratt Farnsworth, Inc.

Boh Bros. Construction Co., Inc

American Gulf Enterprises, Inc.

Gutler-Herbert & Co., Inc.

Bartley, Incorporated

Binnings Construction Co., Inc.

Gervais F. Favrot Company, Inc.

During the 12 months preceding the

issuance of the complaint, a period

representative of all times material

herein, the foregoing named Respondents,

C-4

each individually, in the course and

conduct of their business purchased and

received goods and materials valued in

excess of $50,000, which goods and

materials were shipped directly to their

respective operations located in the

metropolitan area of New Orleans,

Louisiana, from points located outside the

State of Louisiana.

It is admitted and I find that the

Respondents are, individually and

collectively, and have been at all times

material herein, employers engaged in

commerce within the meaning of Section

2(6) an@ (7) of the Act.

II. The Unfair Labor Practices

The complaint alleges that since at

least May 1, 1977, and at all times

thereafter, and continuing to date, the

Union has been, and is now, the repre-

sentative for the purposes of collective

bargaining of a majority of the employees

in an appropriate unit and by virtue of

Section 9(a) of the Act, has been, and is

now, the exclusive representative of all

employees in said unit for the purposes of

collective-bargaining with respect to

rates of pay, wages, hours of employment,

and other terms and conditions of

employment; and that the unit appropriate

for collective bargaining within the

meaning of Section 9(b) of the Act is as

follows:

All carpenters employed by

Respondents, individually and collective-

ly, on their construction projects located

within the geographical jurisdiction of

the Union, excluding all other employees.

The Respondent admitted the foregoing

allegations but amended its answer at the

hearing to admit that the Union is the

designated bargaining agent for employees

in individual bargaining units but that

the Respondent denies the existence of a

mlti-employer bargaining unit.

The record reveals that the

Respondents and the Union have since at

least 1961, maintained a collective

bargaining relationship and have entered

into successive collective bargaining

agreements which embody rates of pay,

wages, hours of employment and other terms

and conditions of employment. The last

two contracts in that series of contracts

were in effect during the periods of May

Ly 1977 to April 30, 1980. and May l,

1980, to April 30, 1982, and reveal that

the Respondents are Signatory thereto and

parties thereby as members of the New

Orleans District, Associated General

Contractors of Louisiana, Inc. (herein

called AGC). Those contracts further

indicate that the AGC "and such other

Employers for whom the [AGC] has

bargained" are parties thereto and

referred to therein as "contractors" or

"Employers." The Recognition clause

therein states:

The Contractors, during the life

of this agreement, recognize the

Unions as the exclusive bargaining

representatives for all of their

employees coming under the

respective jurisdiction of the

Unions for the prupose [sic] of

collective bargaining in respect

to rates of pay fringes, hours of

employment and other conditions of

employment.

There is uncontradicted record

testimony to the effect that a committee

of the AGC engaged in joint bargaining

with the Union on behalf of the

Respondents. Accordingly I conclude that

the General Counsel has sustained its

burden of proof with respect to the

aforesaid allegations concerning the

individual and collective nature of the

bargaining unit. In any event, it is

clear that the Respondents had an

obligation to bargain with the Union

concerning wages, hours and conditions of

employment of carpenters located within

the geographical jurisdiction of the

Union, whether individually or

collectively.

Davy P. Laborde Sr., the business

representative of the Union, testified

that he has participated in negotiations

with the Respondents since 1961. In

response to cross examination Laborde

testified that for several years he had

received reports from agents of the Union

and other persons engaged in the

construction business to the effect that

some of the Respondents had formed

“double-breasted" companies to perform

unit work with non-union employees.

Laborde testified in further cross

examination that on one occasion he had

made a fruitless investigation of citings

of certain machinery owned by a respondent

at a job site of a construction company

whose employees were unrepresented by the

Union and where unit work was performed.

Employees of one of the Respondents had

also informed Laborde on another occasion

that they requested the withdrawal of

their union cards upon commencement of

employment at a reputed "double-breasted"

company.

In past negotiations with Respondents

on at least two occasions Laborde proposed

the incorporation into the collective

bargaining agreement of a so-called

“subsidiary clause," for the purpose of

automatically extending the coverage of

the collective bargaining agreement to

additional enterprises formed by the

respondents. These attempts failed.

Laborde testified, without contradiction,

that he ceased such efforts in that the

Respondents had continually refused to

answer his inquiries as to other related

companies and adamantly insisted that they

maintained no double-breasted operations.

On December 15, 1978, Pursuant to a

representation petition filed by the

Union, and a hearing conducted on November

27, 1978, the Acting Regional Director of

Region 15, in Case No. 15-RC-6380,

directed an election in a Carpenters' unit

at Claiborne Builders, Inc., in or near

New Orleans, Louisiana. An election was

conducted on January 12, 1979. Laborde

testified that he engaged in a conver-

Sation on the day of that election at the

Claiborne place of business with Joe

Lemoine who identified himself as the

Treasurer of Claiborne as well as the

Treasurer of Perrilliet-Rickey

Construction Company, Inc., which Laborde

discovered then to have occupied a common

premises with Claiborne.~— Laborde

ij Perrilliet-Rickey Construction

Company, Inc., was a member of the AGC and

a party to the contract which expired on

April 30, 1980. It was named in the

instant unfair labor practice charge as

testified without contradiction and with

substantial corroboration by Union agent

James Paulino, Jr. who waS present, that

Lemoine explained to him that Perrilliet-

Rickey had formed a secondary company i.e.

Claiborne, for the purpose of competing

against other "double-breasted" companies

that were formed by other parties to the

collective-bargaining agreement i.e. the

Respondents. Although Laborde had

initially fixed the date of this conver-

sation in November, 1979, he retracted his

testimony to place it in January, the date

of the election, having explained his

confusion as to the month of the hearing

and month of the election. Despite his

initial confusion I credit his uncontra-

dicted testimony as to the substance of

1/ (Cont'd) was the AGC, but, like the

AGC, not named in the Complaint. The

General Counsel stated in its brief that

Perrilliet-Rickey timely withdrew from the

AGC and accordingly was not named in the

Complaint.

the conversation and that it occurred on

the date of the election at Claiborne.

Paulino in his uncontradicted

testimony added that during this

conversation when Lemoine asked why the

Union was seeking an election at

Claiborne, he, Paulino, responded: "...

that we were going to try to organize all

the non-union companies that we felt were

offsprings from union companies."

Laborde testified that thereafter he

determined that it was necessary to obtain

information from the Respondents

concerning the existence of any

"double-breasted" enterprises in order to

discover whether the Respondents had

violated the collective-bargaining

agreement by failing to extend the terms

and conditions of the collective-

bargaining agreement to the employees of

such "double-breasted" companies.

Additionally he determined that such

information would assist him in contract

negotiations with the Respondents with

regard to two area e.g. whether he would

revive his request for the subsidiary

clause, and what positions the Union

should take with respect to economic

issues. With respect to possible economic

positions he explained that such could

have been affected by knowledge of what

the Respondents were affording non-union

employees of affiliated companies. That

is to say for example he might modify his

economic demands if a risk existed of

losing unit work to the non-union

affiliated companies.

Between January 18, 1980, and February

12, 1980, prior to the April 30, 1980,

expiration date of the collective-

bargaining agreement, the Union by

individual letters, requested of the

Respondents answers to 13 questions, which

the Union it its letter explained were

necessary because of information it had

obtained to the effect that the individual

respondent had by the operation of a

specifically named enterprises performed

work which otherwise would have been

performed by the Respondents and by such

conduct Respondents might be in violatoin

of the collective-bargaining agreement

provisions i.e. "wages, scope of

agreement, referral clause, fringe benefit

provisions and recognition and possibly