International Association of Heat & Frost Insulators

INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS 143 International Association of Heat & Frost Insulators & Asbestos Workers, Local No. 80, AFL-CIO and West Virginia Master Insulators Associ- ation. Case 9-CB-3942 March 4, 1980 DECISION AND ORDER CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon charges duly filed, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 9, issued a complaint and notice of hearing, dated January 30, 1979, against International Association of Heat & Frost Insulators & Asbestos Workers, Local No. 80, AFL-CIO, hereinafter referred to as Respondent. The complaint alleges that Respondent has en- gaged in certain unfair labor practices within the meaning of Section 8(b)(3) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing were duly served on the parties. Respondent filed an answer to the complaint, denying commission of any unfair labor practice. On or about July 23, 1979, the parties entered into a stipulation of facts and jointly petitioned the Board to transfer this proceeding directly to itself for findings of facts, conclusions of law, and an order. The parties stipulated that they waived a hearing before an administrative law judge and the rulings upon motions by an administrative law judge and exceptions thereto, and that no oral testi- mony was necessary or desired by any of the par- ties. The parties also agreed that the charge, com- plaint and notice of hearing, Respondent's answer to the complaint, and the stipulation and motion constitute the entire record in this case. On October 17, 1979, the Board issued its order approving the stipulation and transferring the pro- ceeding to the Board. Thereafter, the General Counsel and the Charging Party, West Virginia Master Insulators Association, filed briefs in sup- port of their position. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the stipulation, the briefs, and the entire record in this proceeding, and hereby makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER West Virginia Master Insulators Association, hereinafter referred to as the Association, is an un- 248 NLRB No. 22 incorporated multiemployer group with offices in Charleston, West Virginia. The Association is com- posed of various employers engaged in the installa- tion of insulation material in the States of West Virginia, Kentucky, and Ohio, and exists and func- tions for the purpose, among others, of represent- ing its employer-members in collective bargaining with Respondent. The parties stipulated, and we find, that the Association is now, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that the Re- spondent, International Association of Heat & Frost Insulators & Asbestos Workers, Local No. 80, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE A. Facts On or about June 1, 1977, Respondent entered into a collective-bargaining agreement with the As- sociation, effective from June 1, 1977, until May 31, 1980, which provides at article 17, inter alia, that: 1. The Union shall be the sole and exclusive sources [sic] of referrals of applicants for em- ployment. 2. The Employers shall have the right to reject any applicant referred for employment. If the Employers refuse any applicant there- after, such Employers shall retain one (1) copy and forward to the Business Agent two (2) copies of rejection form indicating thereon the reason for nonhire. 3. Upon request the Union shall notify the Employers of the names of the employees available for work in the highest group for which they qualify. 4. The Union shall select and refer appli- cants for employment without discrimination against such applicants by reason of member- ship or non-membership in the Union and such selection and referral shall not be affected in any way by rules, regulations, by-laws, consti- tutional provisions or any other aspect or obli- gation of Union membership policies or re- quirements. All such selection and referral shall be in accordance with the following pro- cedure: 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The Union shall maintain a register of ap- plicants for employment established on the basis of the groups listed below. Each appli- cant for employment shall be registered in the highest priority group for which he qualifies. On or about March 9, 1978, the Association, by letter, requested Respondent to furnish the Associ- ation with the following information: "A list of all employees [Respondent] has currently placed on jobs or are on Respondent's] out-of-work list with the designation after each name as to the four groups to which they are assigned." On or about April 25, 1978, Respondent, by letter, refused to furnish the requested information and has contin- ued to refuse to do so to date. B. Contentions of the Parties The General Counsel contends that information relating to a union's referral system, including those persons who have utilized such a system, is presumptively relevant and must be disclosed by the union upon the demand of the employer. As the information requested here relates to Respon- dent's referral system, the General Counsel further contends that Respondent's failure to disclose the information constitutes a refusal to bargain under Section 8(b)(3) of the Act. The Association contends that the Union must supply all requested information which is relevant and that the information here requested is relevant and necessary in order to enable the Association to verify Respondent's compliance with the contract' and to formulate proposals for future contract ne- gotiations.2 Consequently, the Association con- tends that Respondent's refusal to provide the in- formation is a violation of Section 8(b)(3) of the Act. Respondent apparently 3 contends that the re- quested information is not relevant to any proper use by the Association, that it is under no duty to disclose nonrelevant information, and that, in the absence of a duty, its refusal is not violative of Sec- tion 8(b)(3) of the Act. C. Discussion Respondent is under an obligation to provide the Association with requested information which is relevant and necessary to the collective-bargaining process. 4 The sole issue, therefore, is whether the I The Association asserts that it has received "numerous complaints from applicants who were trying to be referred" or who had been re- ferred by Respondent. 2 Negotiations are scheduled to commence in May 1980. s Respondent did not file a brief with the Board. E.g., Local 13, Detroit A'wspaper Printing and Graphic Communica- lions Union International Printing and Graphic Communications Union, requested information is relevant and necessary to the collective-bargaining process. In Oakland Press, supra at 996, the Board found that a union's refusal to provide information quite similar to that requested here constituted a viola- tion of Section 8(b)(3). In so finding, the Board held that "[the] information on referrals is analo- gous to information furnished by employers to unions as to employee job classifications and wage rates" and that such information is "clearly rel- evant and necessary" for Oakland "to evaluate the present referral practices under the existing contract, to test the validity of its [contract] proposals, and to formulate future contract proposals on referrals." (Emphasis supplied.) A factor distinguishing Oakland Press from the present case is that there the parties were engaged in contract negotiations while here they are not; however, in the circumstances of this case, we do not find this distinction determinative. 5 As the Su- preme Court observed in Conley v. Gibson,6 "[C]ollective bargaining is a continuing pro- cess. . . . it involves day-to-day adjustments in the contract and other working rules, resolution of new problems not covered by existing agreements, and the protection of employee rights already se- cured by contract." As indicated above, the sole issue herein is the relevance of the requested information to the bar- gaining process. 7 In the present case, the Association argues that the requested information is relevant for many rea- sons; however, it is sufficient to say that the infor- mation regarding referrals is relevant to the day-to- day administration of the contract 8 as well as to enable the Association to prepare for future con- tract negotiations. 9 Accordingly, on the basis of our holding in Oakland Press, we conclude that by refusing to disclose, upon request, information which is presumptively relevant to the collective- bargaining process, Respondent refused to bargain in good faith in violation of Section 8(b)(3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The refusal of Respondent set forth in section III, above, occurring in connection with its rela- AFL-CIO (The Oakland Press Co.), 233 NLRB 994 (1977), enfd. 598 F.2d 267 (D.C. Cir. 1979). See, eg., J. Case Company v. XNL.R.B., 253 F.2d 149 (7th Cir. 1958). 6 355 U.S. 41, 46 (1957) See, generally, N.L.R.B. v. Acme Industrial Co., 385 U.S. 432 (1967). 8 Much of the requested information is required to be disclosed by the express language of art. 17, par. 3 of the collective-bargaining contract now in force. g See J. I. Case Co., supra at 155. --- INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS 145 tionship with the Association, has a close, intimate, and subtantial relationship to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact, conclusions, and the entire record, we make the following: CONCLUSIONS OF LAW 1. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 2. The Association is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. The following employees of the employer- members of the Association constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All mechanics, apprentices and all referral people when they are engaged in the prepara- tion, fabrication, alteration, application, erec- tion, assembling, molding, spraying, pouring, mixing, hanging, adjusting, repairing, disman- tling, reconditioning, maintenance, finishing and/or weather-proofing of cold or hot ther- mal insulation, including all labor connected with the handling and distribution of thermal insulating materials on job premises. 4. At all times material to this proceeding, Re- spondent was, and continues to be, the exclusive representative of the employees in the appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. Respondent has violated Section 8(b)(3) of the Act by failing and refusing to supply, pursuant to the Association's request, information relevant and necessary to the collective-bargaining process. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent has violat- ed the Act by failing and refusing to supply the Association with certain information, we will order that Respondent cease and desist therefrom and supply the Association with the information re- quested in its letter of March 9, 1978. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, International Association of Heat & Frost Insula- tors & Asbestos Workers, Local No. 80, AFL- CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with West Virginia Master Insulators Association by refusing to furnish the Association with information rel- evant and necessary to the collective-bargaining process. (b) Engaging in any like or related conduct in derogation of its statutory duty to bargain. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Supply the Association with the following in- formation requested in its letter of March 9, 1978: A list of all employees Respondent has cur- rently placed on jobs or are on Respondent's out-of-work list with the designation after each name as to which of the four groups they are assigned. (b) Post at Respondent's business office and meeting places copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Respondent's authorized representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Forward to the above-named Charging Party for posting at its employer-members' premises, the Charging Party willing, copies of such notices duly signed by Respondent's representative. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 'O In 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 Pursu. ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with West Virginia Master Insulators Associ- 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ation by refusing to supply information rel- evant and necessary to the bargaining process. WE WILL NOT engage in any like or related conduct in derogation of our statutory duty to bargain. WE WILL furnish West Virginia Master In- sulators Association with the following infor- mation: A list of all employees we have currently placed on jobs or are on our out-of-work list with the designation after each name as to which of the four groups they are assigned. INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS & ASBES- TOS WORKERS, LOCAL NO. 80, AFL- CIO