Transport of New Jersey

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Transport of New Jersey and Local 823, Amalgamated Transit Union, AFL-CIO. Case 22-CA-7471 November 21, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on February 11, 1977, by Local 823, Amalgamated Transit Union, AFL-CIO, herein called the Union, and duly served on Transport of New Jersey, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 22, issued a complaint and notice of hearing on March 28, 1977, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing of Section 8(a)(5) and (I) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on or before 1970, a majority of the employees in the appropriate unit designated and selected the Union as their exclusive representative for the purposes of collective bargaining and that at all material times herein the Union has been and now is the exclusive representa- tive of the employees in the appropriate unit by virtue of Section 9(a) of the Act; that since on or about February 1, 1977, and at all times thereafter, the Union has requested Respondent to furnish it with the names and addresses of witnesses to an accident which are needed to process a grievance by an employee within the unit: and that Respondent has refused, and continues to refuse, to provide the Union with the requested information. Subsequently, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 1, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment and brief in support thereof, with exhibits attached. Subsequently, on August 9, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent thereafter filed a memorandum in opposition to the General Counsel's Motion for Summary Judg- ment, with exhibits attached. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Respondent, in its answer to the complaint and its memorandum in opposition to the General Counsel's Motion for Summary Judgment, admits that it has refused, and continues to refuse, to furnish the Union with the requested names and addresses of passenger witnesses to a bus accident involving one of the operators in the unit. Respondent, however, submits that it is under no duty to provide the requested information. It contends that the requested informa- tion is neither relevant nor necessary to the process- ing of the grievance concerning its disciplining of the operator because its determination that the operator was "at fault" in the accident was based solely on his version of the incident and the physical circum- stances, and not upon any information obtained from the witnesses whose identity is sought by the Union. Further, although admitting that the Union requested the names and addresses of witnesses during the first two steps of the parties' contractual grievance procedure, it argues that the Union's failure to invoke the arbitration steps of the proce- dure within the time provided under the contract relieves it from any present obligation to furnish the information. Finally, it contends that requiring it to furnish the requested information will expose the passenger witnesses to unnecessary harassment and "improper contact." It is well established that Section 8(a)(5) of the Act imposes upon an employer the duty to furnish a union, upon request, information relevant and necessary to enable it to intelligently carry out its statutory obligations as the employees' exclusive bargaining representative. And, under the standard of relevancy as applied by the Board and the courts, it is sufficient that the union's request for informa- tion be supported by a showing of "probable" or "potential" relevance.' In the instant case, it is clear that the grievance filed by the Union related to Respondent's determination that the operator was at fault in the accident and that the names and addresses of witnesses to the accident, and the information which in turn might be obtained from such witnesses, is relevant to the issues raised by the Union's grievance and is necessary to enable the Union to properly and intelligently process the I N.L.R.B. v. Acme Industrial Co., 385 U.S. 432 (196%7). 233 NLRB No. 101 694 TRANSPORT OF NEW JERSEY grievance. Furthermore, we find without merit Respondent's contention that the Union's asserted failure to timely invoke arbitration under the contractual grievance procedure relieves it from any present obligation to furnish the requested informa- tion. For it is clear that the requested information is both relevant and necessary to enable the Union to make an intelligent judgment with respect to the merits of its grievance and a decision whether to proceed to arbitration.2 Additionally, we find unper- suasive Respondent's argument that divulging the names and addresses of the witnesses to the Union would expose them to unnecessary harassment and "improper contact." In our view, the dangers suggested by Respondent are at most speculative and the likelihood of their occurrence is substantially outweighed by the Union's need to obtain informa- tion relevant and necessary to the proper perfor- mance of its statutory function of processing griev- ances. 3 We therefore find that no material issues of fact exist in this proceeding which warrant a hearing. We further find that, by refusing to furnish to the Union the information it requested, Respondent violated Section 8(a)(5) and (1). Accordingly, we hereby grant the General Counsel's Motion for Summary Judg- ment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a New Jersey corporation with its principal office and facility in Maplewood, New Jersey, where it is engaged in the business of providing bus transportation and related services in the State of New Jersey, and between the States of New Jersey and New York, and the States of New Jersey and Pennsylvania. In the course and conduct of its business during the past 12 months, Respondent had gross annual revenues in excess of $250,000. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 2 Lewers & Cooke, Ltd., 153 NLRB 1542, 1546 (1965); Metropolitan Life Insurance Companiy, 150 NLRB 1478, 1484 (1965). 1I. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Collective-Bargaining Relationship 1. The unit The complaint alleges and Respondent admits that the following employees constitute a unit appropriate for collective-bargaining purposes within the mean- ing of Section 9(b) of the Act: All hourly employees including operators em- ployed by Transport of New Jersey, but excluding all seasonal and summer employees, professional employees, managerial employees, assistant su- pervisors, technical employees, confidential em- ployees, guards and all supervisors as defined in the Act. 2. The representative status of the Union The complaint alleges that, on or before 1970, a majority of the employees of Respondent in the aforementioned appropriate unit designated and selected the Union as their representative for the purpose of collective bargaining with Respondent, and that at all times since on or about 1970 the Union has been and now is the exclusive representa- tive of the employees in said unit by virtue of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about February 1, 1977, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit by furnishing to it the names and addresses of witnesses to an accident which are needed by the Union to enable it to process a grievance of an employee in the unit. Since on or about February 1, 1977, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to furnish the requested information to the Union. Accordingly, we find that Respondent, since on or about February 1, 1977, and at all times thereafter, has refused to bargain collectively with the Union as the exclusive representative of the employees in the 3 Custom Excavating, Inc., 228 NLRB 285 (1977): Metropolitan Life Insurance Companv, supra, 1486. 695 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate unit by refusing to furnish to the Union the information it requested, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom. We shall further require Respondent, upon request, to furnish the Union, as the exclusive representative of all employees in the appropriate unit, the names and addresses of the witnesses to an accident which are needed to enable the Union to process a grievance of an employee in the unit. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Transport of New Jersey is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 823, Amalgamated Transit Union, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All hourly employees including operators employed by Transport of New Jersey, but excluding all seasonal and summer employees, professional employees, managerial employees, assistant supervi- sors, technical employees, confidential employees, guards and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the above-named labor organization has been and now is the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit by refusing on or about February 1, 1977, and at all times thereafter, to furnish to the Union the names and addresses of witnesses to an accident which are needed to enable the Union to process a grievance of an employee in the unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to furnish information, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Transport of New Jersey, Maplewood and Elizabeth New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local 823, Amalgamated Transit Union, AFL-CIO, as the exclusive bargaining representative of the employees in the appropriate unit set forth below, by refusing to furnish the said labor organization with the names and addresses of witnesses to an accident which are needed to enable it to process the grievance of an employee in the unit. The appropriate unit is: All hourly employees including operators em- ployed by Transport of New Jersey, but excluding all seasonal and summer employees, professional employees, managerial employees, assistant su- pervisors, technical employees, confidential em- ployees, guards and all supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Local 823, Amalgamated Transit Union, AFL-CIO, by furnishing to the said labor organization the names and addresses of witnesses to an accident which are 696 TRANSPORT OF NEW JERSEY needed to enable it to process the grievance of an employee in the appropriate unit. (b) Post at its facilities at Maplewood and Elizabeth, New Jersey, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondent's represen- tative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees 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) Notify the Regional Director for Region 22 in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Local 823, Amalgamated Transit Union, AFL- CIO, as the exclusive bargaining representative of the employees in the appropriate unit set forth below, by refusing to furnish the said labor organization with the names and addresses of witnesses to an accident which are needed to enable it to process the grievance of an employee in the unit. The appropriate unit is: All hourly employees including operators employed by Transport of New Jersey, but excluding all seasonal and summer employ- ees, professional employees, managerial employees, assistant supervisors, technical employees, confidential employees, guards and all supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain collectively, with Local 823, Amalgamated Transit Union, AFL-CIO, by furnishing to the said labor organization the names and addresses of wit- nesses to an accident which are needed to enable it to process the grievance of an employee in the appropriate unit. TRANSPORT OF NEW JERSEY 697