McClain of Georgia

1 324 NLRB No. 159 1 See 322 NLRB 367 (1996). 2 We therefore deny the Respondent’s request that the complaint and notice of hearing be dismissed and that the Respondent be awarded costs and attorneys’ fees. 3 Member Higgins did not participate in the underlying representa- tion proceeding. He agrees, however, that the Respondent has not raised any representation issue that is properly litigable before the Board in this ‘‘technical’’ refusal to bargain unfair labor practice proceeding and that summary judgment is therefore appropriate. NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er- rors so that corrections can be included in the bound volumes. McClain of Georgia, Inc. and Shopmen’s Local Union No. 616 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL–CIO. Case 10–CA–29919 November 7, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on January 23, 1997, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on May 16, 1997, alleging that the Respondent has vio- lated Section 8(a)(5) and (1) of the National Labor Re- lations Act by refusing the Union’s requests to bargain and to provide information following the Union’s cer- tification in Case 10–RC–14578. (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an amended answer ad- mitting in part and denying in part the allegations in the complaint and asserting affirmative defenses. On October 3, 1997, the General Counsel filed a Motion for Summary Judgment. On October 7, 1997, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the mo- tion should not be granted. Ruling on Motion for Summary Judgment In its amended answer the Respondent admits its re- fusal to recognize and bargain and to furnish informa- tion, but attacks the validity of the certification on the basis of the Board’s disposition of certain challenged ballots in the representation proceeding. In addition, the Respondent denies that the information requested by the Union is necessary and relevant. All representation issues raised by the Respondent were or could have been litigated in the prior represen- tation proceeding.1 The Respondent does not offer to adduce at a hearing any newly discovered and pre- viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation pro- ceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). We also find that there are no issues warranting a hearing with respect to the information requested by the Union. The Union requested that the Respondent furnish it with the following information: (1) name of each production and maintenance employee; (2) date hired; (3) present hourly rate of pay; (4) job classifica- tion or description of work performed; (5) descriptive outline of any bonus or incentive plan; (6) explanation of vacation benefits, if any; (7) explanation of group insurance welfare benefits, or pension plan, if any, in- cluding full explanation of cost thereof; and (8) expla- nation of any other fringe benefits applicable to the Company’s production and maintenance employees. Although the Respondent denies that this information is necessary and relevant to the Union’s role as the ex- clusive bargaining representative of the unit employ- ees, it is well-established that such information is pre- sumptively relevant and must be furnished on request. See e.g., Trustees of the Masonic Hall, 261 NLRB 436 (1982); and Mobay Chemical Corp., 233 NLRB 109 (1977). Accordingly, we grant the Motion for Summary Judgment2 and will order the Respondent to recognize and bargain with the Union and to furnish it the infor- mation requested.3 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Georgia cor- poration, with an office and place of business in Macon, Georgia, has been engaged in the manufacture of solid waste handling equipment and containers. Dur- ing the 12-month period preceding issuance of the complaint, the Respondent, in conducting its business operations, sold and shipped from its Macon, Georgia facility finished products valued in excess of $50,000 directly to customers located outside the State of Geor- gia. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organi- zation within the meaning of Section 2(5) of the Act. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 If 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.’’ II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held February 23, 1995, the Union was certified on November 12, 1996, as the ex- clusive collective-bargaining representative of the em- ployees in the following appropriate unit: All full-time and regular part-time hourly produc- tion and maintenance employees, including yard- men, maintenance employees, machine shop em- ployees, welders, painters, grinders and leaders (leadmen) employed by the Employer at its 1166 Fulton Street, Macon, Georgia facility, but exclud- ing all salaried employees, including office cleri- cal employees, accounts receivable employees, payroll employees, production control clerks, en- gineers, managerial employees, guards and super- visors as defined in the Act. The Union continues to be the exclusive representa- tive under Section 9(a) of the Act. B. Refusal to Bargain About December 6 and 23, 1996, the Union re- quested the Respondent to bargain and to furnish infor- mation, and, since about December 6, 1996, the Re- spondent has failed and refused. We find that this fail- ure and refusal constitutes an unlawful refusal to bar- gain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after December 6, 1996, to rec- ognize and bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit and to furnish the Union requested information, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the un- derstanding in a signed agreement. We also shall order the Respondent to furnish the Union the information requested. To ensure that the employees are accorded the serv- ices of their selected bargaining agent for the period provided by the law, we shall construe the initial pe- riod of the certification as beginning the date the Re- spondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, McClain of Georgia, Inc., Macon Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Shopmen’s Local Union No. 616 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL- CIO, as the exclusive bargaining representative of the employees in the bargaining unit, and refusing to fur- nish the Union information that is relevant and nec- essary to its role as the exclusive bargaining represent- ative of the unit employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, recognize and bargain with the Union as the exclusive representative of the employees in the following appropriate unit on terms and condi- tions of employment, and if an understanding is reached, embody the understanding in a signed agree- ment: All full-time and regular part-time hourly produc- tion and maintenance employees, including yard- men, maintenance employees, machine shop em- ployees, welders, painters, grinders and leaders (leadmen) employed by the Employer at its 1166 Fulton Street, Macon, Georgia facility, but exclud- ing all salaried employees, including office cleri- cal employees, accounts receivable employees, payroll employees, production control clerks, en- gineers, managerial employees, guards and super- visors as defined in the Act. (b) Furnish the Union the information that it re- quested on December and 23, 1996. (c) Within 14 days after service by the Region, post at its facility in Macon, Georgia, copies of the attached notice marked ‘‘Appendix.’’4 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not 3 MCCLAIN OF GEORGIA altered, defaced, or covered by any other material. In the event that, during the pendency of these proceed- ings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own ex- pense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since January 23, 1997. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. November 7, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Shopmen’s Local Union No. 616 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL–CIO, as the exclusive representative of the em- ployees in the bargaining unit, and WE WILL NOT refuse to furnish the Union information that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All full-time and regular part-time hourly produc- tion and maintenance employees, including yard- men, maintenance employees, machine shop em- ployees, welders, painters, grinders and leaders (leadmen) employed by us at our 1166 Fulton Street, Macon, Georgia facility, but excluding all salaried employees, including office clerical em- ployees, accounts receivable employees, payroll employees, production control clerks, engineers, managerial employees, guards and supervisors as defined in the Act. WE WILL furnish the Union the information it re- quested on December 6 and 23, 1997. MCCLAIN OF GEORGIA, INC.