Sawyer Lumber Co.

327 NLRB No. 83 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to no- tify the Executive Secretary, National Labor Relations Board, Wash- ington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Sawyer Lumber Co., L.L.C. and PACE, Paper, Allied-Industrial, Chemical and Energy Workers International Union, AFL–CIO.1 Case 30-CA-14487 January 15, 1999 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND HURTGEN Pursuant to a charge filed on October 28, 1998, the General Counsel of the National Labor Relations Board issued a complaint on November 20, 1998, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain and to furnish necessary and relevant information following the Union’s certification in Case 30–RC–5981,2 (Of- ficial notice is taken of the “record” in the represen- tation 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 answer admitting in part and denying in part the allegations in the complaint and asserting an affirma- tive defense. On December 14, 1998, the General Counsel filed a Motion for Summary Judgment. On December 17, 1998, the Board issued an order transferring the pro- ceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respon- dent filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer, the Respondent admits that it has re- fused to schedule meeting dates and times for nego- tiations and that it has refused to furnish requested information to the Union, but attacks the validity of the certification on the basis of its objections to con- duct alleged to have affected the results of the elec- tion in the representation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior repre- sentation proceeding. 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 1 On January 4, 1999, the United Paperworkers International Un- ion, AFL–CIO, CLC merged with the Oil, Chemical and Atomic Workers International Union. Accordingly, the caption has been amended to reflect that change. 2 326 NLRB No. 137 (Sept. 30, 1998). reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is prop- erly 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 factual issues war- ranting a hearing with respect to the Union’s request for information. The Respondent’s answer admits that by letter dated October 20, 1998, the Union re- quested it to furnish it with the following informa- tion: (1) The names, pay rates, and current job held by each hourly employee. (2) Total hours worked in the preceding year by each hourly employee. (3) Total overtime hours paid to hourly employees in the preceding year. (4) A complete listing of all benefits received by hourly employees, including but not limited to health insurance, incentive plans, pensions, shift differential, accident and sickness insurance, dental insurance, life insurance, accidental death and dismemberment in- surance, etc. (5) The names of all insurance carriers and the total cost in cents per hour for all insurance premiums and other benefits listed above. (6) Average age of all hourly employees. (7) Total number of hourly employees working swing shift. (8) Total number of hourly employees working day shift. (9) Total number of male and female hourly em- ployees. The Respondent’s answer admits that it refused to provide this information to the Union. Further, al- though the Respondent’s answer denies that the in- formation requested is necessary and relevant for the Union’s duties as the exclusive bargaining represen- tative of the unit employees, it is well established that such information is presumptively relevant and must be furnished on request. See, e.g., Masonic Hall, 261 NLRB 436 (1982); and Mobay Chemical Corp., 233 NLRB 109 (1997). The Respondent has not at- tempted to rebut the relevance of the information requested by the Union. Accordingly, we grant the Motion for Summary Judgment3 and will order the Respondent to recog- nize and bargain with the Union and to furnish it the information requested. On the entire record, the Board makes the follow- ing 3 The Respondent’s request to dismiss the complaint together with the imposition of costs and attorneys’ fees is denied. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 FINDINGS OF FACT I. JURISDICTION During the calendar year that ended December 31, 1998, the Respondent, in conducting its operations, sold and shipped goods valued in excess of $50,000 directly from its Gwinn, Michigan facility to points located outside the State of Michigan. 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 organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held March 19, 1998, the Union was certified on September 30, 1998, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time production and maintenance employees employed by the Employer at its [Gwinn], Michigan, facility; but excluding of- fice employees, clerical employees, forestry staff and scalers, quality control staff, professional em- ployees, guards and supervisors, as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain By letter dated October 20, 1998, the Union re- quested the Respondent to meet and bargain and to furnish information, and, since October 23, 1998, the Respondent has failed and refused. We find that this failure and refusal constitutes an unlawful failure and refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing on and after October 23, 1998, to meet and bargain with the Union as the ex- clusive collective-bargaining representative of em- ployees 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 Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to meet and bargain on request with the Union, and, if an understanding is reached, to embody the understanding 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 services of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the certification as beginning the date the Respondent 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, Sawyer Lumber Co., L.L.C., Gwinn, Michigan, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to meet and bargain with PACE, Pa- per, Allied-Industrial, Chemical and Energy Workers International Union, AFL–CIO as the exclusive bar- gaining representative of the employees in the bar- gaining unit, and refusing to furnish the Union infor- mation that is relevant and necessary to its role as the exclusive bargaining representative of the unit em- ployees. (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, meet and bargain with the Union as the exclusive representative of the employees in the following appropriate unit on terms and conditions of employment, and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time production and maintenance employees employed by the Employer at its [Gwinn], Michigan, facility; but excluding of- fice employees, clerical employees, forestry staff and scalers, quality control staff, professional em- ployees, guards and supervisors, as defined in the Act. (b) Furnish the Union the information that it re- quested on October 20, 1998. (c) Within 14 days after service by the Region, post at its facility in Gwinn, Michigan, copies of the at- tached notice marked “Appendix.” 4 Copies of the notice, on forms provided by the Regional Director for Region 30 after being signed by the Respondent’s 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.” SAWYER LUMBER CO., L.L.C. 3 authorized representative, shall be posted by the Re- spondent 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 altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since October 23, 1998. (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. January 15, 1999 Sarah M. Fox, Member Wilma B. Liebman, Member Peter J. Hurtgen, 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 PACE, Paper, Allied-Industrial, Chemical and Energy Workers In- ternational Union, AFL–CIO as the exclusive repre- sentative of the employees in the bargaining unit, and WE WILL NOT refuse to furnish the Union information that is relevant and necessary to its role as the exclu- sive 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, meet and 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 production and maintenance employees employed by us at our [Gwinn], Michigan, facility; but excluding office employees, clerical employees, forestry staff and scalers, quality control staff, professional employ- ees, guards and supervisors, as defined in the Act. WE WILL furnish the Union the information it re- quested on October 20, 1998. SAWYER LUMBER CO., L.L.C.