Phillips Industries, Inc.

364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Irwindale Division of Lau Industries, a Division of Philips Industries, Inc. and Aluminum Workers In- ternational Union, AFL-CIO. Case 21-CA-12920 FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS July 22, 1975 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On March 18, 1975, Administrative Law Judge Martin S. Bennett issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief . The Charging Party filed a brief in answer to Respondent's exceptions. 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 record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings , findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as corrected by his Errata of April 4, 1975, and hereby orders that Respondent, Irwindale Division of Lau Industries, a Division of Philips Industries, Inc., Irwindale, Cali- fornia, its officers, agent, successors, and assigns, shall take the action set forth in said recommended Order. DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Administrative Law Judge: This matter was heard at Los Angeles, California, on January 14, 1975. The complaint, issued September 16 and based upon a charge filed August 13, 1974, by Aluminum Work- ers International Union, AFL-CIO, herein the Union, al- leges that Respondent, Irwindale Division of Lau Indus- tries, a Division of Philips Industries, Inc., has engaged in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act. Briefs have been submitted by the par- ties. Upon the entire record in the case, and from my obser- vation of the witnesses, I make the following: Irwindale Division of Lau Industries, a Division of Phil- ips Industries, Inc., is an Ohio corporation engaged in the manufacture and distribution of air moving devices and gas-fired manifolds at Irwindale, California. It annually sells and directly ships products valued in excess of $50,000 to customers located outside the State of California. I find that the operations of Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Aluminum Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction; the Issue In terms of the Act, there is but one basic issue in this case, namely, has Respondent refused to supply informa- tion concerning bargaining unit employees to their certi- fied representative and has it therefore failed to bargain in good faith with said representative. The case at all stages has been embellished by substantial litigation by Respon- dent before the United States District Courts and the Board resisting such a bargaining order. B. Sequence of Events The Union won a Board-conducted election on Septem- ber 21, 1973, in Case 21-RC-13308, in a unit of Respondent's production and maintenance employees at Irwindale, including shipping and receiving employees, lead employees, inspectors and truckdrivers, but excluding office clerical, casual or temporary employees, draftsmen, professional employees, guards and supervisors. The ap- propriateness of this bargaining unit within the meaning of Section 9(b) of the Act is conceded herein, and I so find. Respondent filed objections thereto, the Regional Direc- tor recommended that they be overruled, and, on April 24, 1974, the Board certified the Union as the bargaining rep- resentative for the above-described unit at 210 NLRB 182. A motion for reconsideration was denied by the Board on July 1, 1974. Previously, on April 29, following the certifi- cation, the Union wrote to Respondent and requested cer- tain information relating to employees in this bargaining unit. Respondent, on May 3, rejected this, relying upon its pending motion for reconsideration. After denial of the lat- ter on July 1, the Union, on July 10, renewed its request for this information which was as follows: 1. A list of all employees. 2. Seniority dates of all employees. 3. Rate of pay for all employees. 4. List of all classifications, including the mini- mum and maximum rate range. IRWINDALE DIV. OF LAU INDUSTRIES 5. Minimum and maximum wages per hour and the rate range of each employee and also the method of progression. 6. A copy of the insurance plan (including the amount the Company pays and the amount the em- ployee pays). 7. The number of paid holidays in effect at your plant. 8. Pension plan or severance plan, if any. 9. Requirements and amounts of vacation. 10. Incentive plan, if any. 11. Night Shift premium. 12. Any other benefit or privileges that your em- ployees now receive. On August 7, the Union again requested collective-bar- gaining in these areas and, on August 9, Respondent wired the Union that it was seeking rather to overturn the certifi- cation in the United States District Court for the Central District of California. This action was dismissed by Memo- randum Opinion on October 3 for lack of jurisdiction and an Order of Dismissal to this effect was issued on Novem- ber 4. I find, therefore, that the Union was, and now is, the representative of these employees within the meaning of Section 9(a) of the Act. Stated simply, and this is not in dispute, Respondent has never provided the requested information, or any portion thereof, and has resisted furnishing same on various techni- cal grounds, including its objections to the election which, as noted, were resolved adversely to it. There is also its further defense that the Union is engaged in invidious and illegal discrimination on the basis of color within the meaning of N.L.R.B. v. Mansion House Center Management Corp., 473 F.2d 471 (C.A. 8, 1973), where the Court held that the remedial machinery of the Board was not available to a union unwilling to correct practices of racial discrimi- nation. But the record in this case is entirely absent of such evidence. Indeed, Respondent has conceded that it does not have such evidence, but wishes to explore the Interna- tional Union's constitution, bylaws, and all its contracts, over 130 in number , as well as its operations under these contracts in almost every State of the country, to ascertain whether the Union has engaged in racial discrimination against blacks in the application of same. What I deem significant herein is the candid admission by counsel for Respondent, on the record, that he was un- aware of the percentage of the black population in Irwin- dale or the Irwindale area from , which this plant draws its employees . The record is also silent as to the percentage of black employees at this facility near Los Angeles. Richard Critelli is an International representative of the Union for the west coast and an employee of the Interna- tional. Respondent was permitted, over objection, to exam- ine him as to the background of various union officials in support of a claim that a labor organization without black management participation , as it were, is incapable of af- fording fair representation to black constituents and there- fore is guilty of invidious and illegal discrimination on the basis of color within the meaning of Mansion House, supra. i This request, of course, must be viewed in the light of a newly certified bargaining representative attempting to function for the first time. 365 These include both elected and appointed personnel. Critelli identified (1) Richard Moore as president and business agent of Local 318 of the International, with of- fices in Riverside, California, within the same complex as the offices of the International; (2) George Martin, an In- ternational representative; (3) Gilbert Wolf, an Interna- tional representative; (4) D. Monroe, an International rep- resentative; (5) Richard Hansen, an International representative; (6) F. Love, an International representa- tive; (7) O. White, an International representative; (8) Ha- rold Drane, an International representative; (9) K. Thomp- son, apparently a former employee of the International Union; (10) Charles West, a former employee of the Inter- national Union; (11) Henry Lezano, a former employee of the International Union; (12) P. Christian, a temporary, International or special representative for the International Union; and (13) one, Abernathy, an International repre- sentative. Of these present and former personnel, Critelli was asked who were black. He responded that Abernathy was and that he did not believe that any of the others were. In essence, Respondent urges that this flies in the face of the Mansion House concept which, so far as I am aware, has not been followed by any other circuits? I have great difficulty in following Respondent's position herein. I am asked to conclude, in effect, that Mr. Aber- nathy is a token symbol and that, based primarily on this percentage ratio, (1) the leaders of this labor organization, both elected and appointed, are per se discriminatorily mo- tivated; (2) as a result, it does not represent its members fairly in terms of race; and (3) there is an invidiously small percentage of blacks employed by Respondent, not only at this suburban Los Angeles plant, but also at all other plants in the United States where the Union represents em- ployees. This boot strap argument I am unable to subscribe to. As the Union points out, this is simply a fishing expedition to ascertain whether there are any fish in the water. Stated otherwise, it would surely seem that Respondent would have to come forward with more. One might conclude that, even if the tip of the iceberg were seen, a reasoned search might follow as to what lies beneath the water. But here, not even the existence of the tip is demonstrated. C. The Refusal to Bargain 3 I have previously set forth the correspondence between the parties and the Union's request for the information in 12 specified categories. At no time has Respondent sup- plied this information or even met with the Union. Respondent's wire to the Union on August 9 perhaps sums up its position here. It based its attack on the certification upon the pending Federal court action, later resolved ad- versely to it, and concluded that the request for negotia- tions was "premature" and that a bargaining session could serve no useful purpose. 2 Respondent stated at p. 65 of the record that it also, if allowed, might get into Mexican-American or Oriental minorities as they allegedly fared with Respondent. 7 As noted, appropriateness of the unit and majority representation are not in dispute herein 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, the Supreme Court has made it eminently clear that there can be no challenge to the obligation of an employer to provide information required or desired by a bargaining representative to properly perform its designat- ed function. See N.L.R.B. v. Acme Industrial Co., 385 U.S. 432 (1967). This has been recognized by the Ninth Circuit, which held that there is a duty to furnish relevant informa- tion upon request. Oregon Coast Operators Association, 113 NLRB 1338 (1955), enfd. 246 F.2d 280 (1957). Respondent has not challenged the relevancy of these 12 items and, in my view, based upon established precedent, particularly in an initial bargaining relationship, the re- quested items are clearly relevant. The abortive procedural steps before the Board and the Federal courts cannot, at this stage, constitute justification for a refusal to bargain. Another word is perhaps in order at this point. There is, as noted, no evidence that the Union excluded blacks from membership. And the Union has urged that it accepts into membership employees as they are hired by their respective employers, or, in other words, that, if Respondent hires blacks or other minorities and if there is a union-security clause, these employees will be accepted into membership; there is no evidence to the contrary. While the burden of proof is upon Respondent to estab- lish a Mansion House defense, I am at a loss to see how a fishing expedition into the contracts of approximately 130 local unions with employers across the country satisfies this burden, let alone as to this Los Angeles installation. Indeed, even the court in Mansion House recognized that a refusal to bargain upon grounds of discrimination "must not rest on pretextual grounds. The law in this area needs to be more fully developed by the Board. Prophylactic pro- cedures may be needed by the Board ...." 4 I conclude accordingly, upon the entire record in the case, that Respondent, by refusing to supply the requested information has engaged in unfair labor practices within the meaning of Section 8(a)(5) and, derivatively, 8(a)(1) of the Act, as alleged by the General Counsel. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Irwindale Division of Lau Industries, a Division of Philips Industries, Inc., is an employer within the meaning of Section 2(2) of the Act. 2. Aluminum Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at Irwin- dale, including shipping and receiving employees, lead em- ployees, inspectors and truckdrivers, but excluding office clerical and casual or temporary employees , draftsmen, professional employees, guards and supervisors , constitute a unit appropriate for the purposes of collective-bargaining within the meaning of Section 9(b) of the Act. 4 I deem it unnecessary herein to set forth any "prophylactic" procedures as an approach to this target, in view of the clear preponderance of the evidence in favor of the position of the General Counsel and contrary to that of Respondent. 4. Aluminum Workers International Union, AFL-CIO, has been at all times material herein , and now is, the exclu- sive representative of the employees in the above-described appropriate unit within the meaning of Section 9(a) of the Act. 5. By refusing to recognize and bargain with the Union and supply it pertinent information concerning bargaining unit employees on and after May 3, 1974, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As Respondent has en- gaged in unfair labor practices within the meaning of Sec- tion 8(aX5) and (1) of the Act, I shall recommend that it furnish the Union the requested data and, upon request, bargain with it concerning wages, hours, and other terms and conditions of employment and, if an agreement is reached, sign same. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS Respondent, Irwindale Division of Lau Industries, a Di- vision of Philips Industries, Inc., its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain with or supply relevant informa- tion to Aluminum Workers International Union, AFL- CIO, as the representative of its employees. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed under Section 7 of the National Labor Relations Act, except to the extent such rights may be af- fected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain with and supply all requested relevant information concerning bargaining unit employ- ees to Aluminum Workers International Union, AFL- CIO, as the exclusive representative of the employees in the above-described appropriate unit, and, if an agreement is reached, sign same. (b) Post at its premises at Irwindale, California, copies In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order , and all objections thereto shall be deemed waived for all purposes. IRWINDALE DIV. OF LAU INDUSTRIES 367 of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent, shall be posted by it immediately upon receipt thereof and be maintained for a period of 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 21, in writ- ing, within 20 days from the date of this Order, what steps it has taken to comply herewith. 6 In the event the Board's Order is enforced by a Judgment of the 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 bargain with Aluminum Workers Interna- tional Union, AFL-CIO, as the representative of our employees in the appropriate unit described below, and if an agreement is reached, sign same. All production and maintenance employees , includ- ing shipping and receiving employees, lead employ- ees, inspectors, and truckdrivers employed at our Irwindale, California, facility, but excluding office clerical employees, casual or temporary employees, draftsmen, professional employees, guards, and su- pervisors as defined in the Act. WE WILL, upon request, supply the above-named la- bor organization the following information concerning bargaining unit employees: 1. A list of all employees. 2. Seniority dates of all employees. 3. Rate of pay of all employees. 4. List of all classifications, including the mini- mum and maximum rate range. 5. Minimum and maximum wages per hour and the rate range of each employee and also the meth- od of progression. 6. A copy of the insurance plan (including the amount the Company pays and the amount the em- ployee pays). 7. The number of paid holidays in effect at our plant. 8. Pension plan or severance plan, if any. 9. Requirements and amounts of vacation. 10. Incentive plan, if any. 11. Night shift premium. 12. Any other benefit or privileges that our em- ployees now receive. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed under Section 7 of the Na- tional Labor Relations Act, except to the extent such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. IRWINDALE DIVISION OF LAU INDUSTRIES, A DIVISION OF PHILIPS INDUSTRIES, INC.