Prime Energy Limited Partnership

328 NLRB No. 143 1 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Prime Energy Limited Partnership and International Union of Operating Engineers, Local 68, AFL– CIO. Case 22–CA–23314 July 20, 1999 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND BRAME Pursuant to a charge filed on May 3, 1999, the General Counsel of the National Labor Relations Board issued a complaint on May 17, 1999, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National La- bor Relations Act by refusing the Union’s request to bar- gain and to furnish information following the Union’s certification in Case 22–RC–11636. (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 answer, with affirma- tive defenses, admitting in part and denying in part the allegations in the complaint. On June 14, 1999, the General Counsel filed a Motion for Summary Judgment and Memorandum in Support. On June 16, 1999, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent 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 its refusal to bar- gain and to furnish information, but attacks the validity of the certification on the basis of the Board’s unit de- termination in the representation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair 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 Union’s request for informa- tion. The Respondent admits that by letter dated Decem- ber 28, 1998, the Union requested that the Respondent furnish it with the following information: 1. A list of current employees including their names, dates of hire, rates of pay, job classification, last known address and phone number. 2. A copy of current personnel policies or proce- dures. 3. A copy of all company fringe benefit plans in- cluding pension, profit sharing, severance, stock in- centive, health and welfare, apprenticeship training, legal services, or any other plans which relate to the employees. 4. Copies of all current job descriptions. 5. Copies of any wage or salary plans. 6. Copies of all disciplinary notices, warnings or records of disciplinary personnel actions for the last year. The Respondent’s answer admits that it refused to provide this information, but, by reason of its denial that the Union is the valid exclusive collective-bargaining representative, denies that the information requested is relevant and neces- sary for the Union’s role as the exclusive bargaining repre- sentative of the unit employees. It is well established, how- ever, that such information is presumptively relevant and must be furnished on request. See Trustees of Masonic Hall, 261 NLRB 436, 437 (1982), and Verona Dyestuff Division, 233 NLRB 109, 110 (1977). The Respondent has not attempted to rebut the relevance of the information re- quested by the Union. Accordingly, we grant the Motion for Summary Judg- ment1 and will order the Respondent to recognize and bargain with the Union and to furnish it the requested information. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation, with an office and place of business in Elmwood Park, New Jersey, has been engaged in the operation of a co- generation plant. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its operations, derived gross revenue in excess of $500,000. 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 December 8 and 10, 1998, the Union was certified on December 21, 1998, as the exclusive collective-bargaining representative of the em- ployees in the following appropriate unit: 1 The Respondent’s request to dismiss the complaint is therefore de- nied. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 All control board operators/shift supervisors and elec- trical and mechanical maintenance employees em- ployed by the Employer at its Elmwood Park, New Jer- sey facility, excluding plant operators, plant managers, assistant plant managers, office clerical employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain Since about December 21, 1998, the Union has re- quested the Respondent to bargain and the Respondent has refused. Since about December 28, 1998, the Union has requested that the Respondent furnish information, and since about March 30, 1999, the Respondent has failed and refused to furnish the Union with the informa- tion requested. We find that this failure and refusal con- stitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since about December 21, 1998, to bargain with the Union as the exclusive collec- tive-bargaining representative of employees in the ap- propriate unit and since about March 30, 1999, to furnish the Union requested necessary and relevant 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 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 Respon- dent to furnish the Union the information it 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 cer- tification 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, Prime Energy Limited Partnership, Elmwood Park, New Jersey, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with International Union of Operating Engineers, Local 68, AFL–CIO, as the exclu- sive bargaining representative of the employees in the bargaining 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 employ- ees. (b) In any like or related manner interfering with, re- straining, 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, bargain with the Union as the exclusive representative of the employees in the following appro- priate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All control board operators/shift supervisors and elec- trical and mechanical maintenance employees em- ployed by the Employer at its Elmwood Park, New Jer- sey facility, excluding plant operators, plant managers, assistant plant managers, office clerical employees, guards and supervisors as defined in the Act. (b) Furnish the Union the information that it requested on December 28, 1998. (c) Within 14 days after service by the Region, post at its facility in Elmwood Park, New Jersey, copies of the attached notice marked “Appendix.”2 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 22, after being signed by the Respondent’s author- ized 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 al- tered, 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 facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since December 21, 1998. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. 2 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” PRIME ENERGY LIMITED PARTNERSHIP 3 Dated, Washington, D.C. July 20, 1999 Sarah M. Fox, Member Wilma B. Liebman, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER BRAME, dissenting. In the underlying representation proceeding, I dis- sented from my colleagues’ denial of the Employer’s request for review of the Regional Director’s Decision and Direction of Election in which he rejected the Em- ployer’s contrary contention and found that the Em- ployer’s shift supervisors, senior electrical maintenance supervisor, and senior mechanical maintenance supervi- sor were employees and not statutory supervisors. Ac- cordingly, I dissent here from my colleagues’ finding that the Employer violated Section 8(a)(5) and (1) of the Act in this certification-testing proceeding. Dated, Washington, D.C. July 16, 1999 J. Robert Brame III, Member 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with International Un- ion of Operating Engineers, Local 68, AFL–CIO, as the exclusive representative of the employees in the bar- gaining unit. 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 bar- gaining unit: All control board operators/shift supervisors and elec- trical and mechanical maintenance employees em- ployed by us at our Elmwood Park, New Jersey facil- ity, excluding plant operators, plant managers, assistant plant managers, office clerical employees, guards and supervisors as defined in the Act. WE WILL furnish the Union the information it requested on December 28, 1998. PRIME ENERGY LIMITED PARTNERSHIP