Chicago Metallic Corp.

CHICAGO METALLIC CORP. 871 Chicago Metallic Corporation and Sheet Metal Workers' International Association, Local Union 170, AFL-CIO. Case 21-CA-23761 28 June 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Upon a charge filed by the Sheet Metal Work- ers' International , Association, Local Union 170, AFL-CIO, the Union, on 27 February 1985,1 the General Counsel of the National Labor Relations Board issued a complaint on 1 April against the Company, the Respondent, alleging that it has vio- lated Section 8(a)(5) and (1) and Section 2(6).and (7) of the National Labor Relations Act. The complaint alleges that on 30 January, fol- lowing a Board election in Case 21-RC-16865, the Union was certified as the exclusive collective-bar- gaining representative of the Company's employees in the unit found appropriate. (Official notice is taken of the "record" in the representation pro- ceeding as defined in the Board's Rules and Regu- lations, Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint further al- leges that since 7 February the Company has re- fused to bargain with the Union. The complaint also alleges that since 26 February the Company has failed and refused' to supply information re- quested by the Union on 7 February which is nec- essary for and relevant-to the Union's performance of its function as the exclusive collective- bargaining representative of the'unit employees. Subsequently, the Company filed its answer dated 10 April, ad- mitting in part and denying in part the allegations in the complaint. On 22 April the General Counsel filed a Motion for Summary Judgment. On 25 April 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 Company filed a response 29 April. Ruling on Motion for Summary Judgment In its answer to the complaint, the Company admits certain factual allegations of the complaint, but denies that it has committed the unfair labor practices alleged. The Company in its answer also admits that it has refused, to recognize and bargain with the Union as the exclusive representative of the unit employees. The Company contends that it has no obligation to bargain with the Union, claim- 1 All dates hereafter refer to 1985 unless otherwise noted ing that the Board's certification of the Union in Case 21-RC-16865 was improper because of mate- rial conduct affecting, the • election and its results. Additionally, the Company argues that the Board abused its discretion in adopting the administrative law judge's findings of fact and conclusions of law in a consolidated unfair labor -practice and repre- sentation proceeding.2 A review of the record reveals that the Compa- ny is attempting to relitigate the identical issues which were considered by the Board in the prior proceeding and which were found to be without merit. It is well settled that in the absence of newly dis- covered and previously unavailable evidence or special circumstances, a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues that were or could have been litigated in a prior representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(1) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Company in this pro- ceeding concerning the Union's certification' were or could have been litigated in the prior proceed- ing. The Company does not.offer to adduce at a hearing' any - newly, discovered, or previously un- available evidence, nor does it allege any special circumstances that would require the Board to re- examine the decision made in the underlying pro- ceeding: We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor •piactice proceeding concerning those issues.. _ . . By letter dated 7 February, the Union,requested the Company to; provide it with information per- taining to the unit employees' rates of pay, benefits, seniority dates, work rules, and related informa- tion.3 Since 26'February, the Company has refused ,to furnish the Union with any of the requested -in- formation. The General Counsel alleges in the complaint that this information is necessary for and relevant to the Union's performance of its function as the exclusive collective-bargaining representative of 2 The Board's decision is reported at 273 NLRB 1677 (1985) 3 More specifically, the Union requested the name, address , telephone number, birth date, classification, wage rate, and date of hire of each unit employee, a list of benefits including past paid vacations , past paid holi- days, number acid names of holidays, sick leave, jury duty, funeral leave, and any other benefits, a list of all wage and benefit increases given to each employee during the last 12-month period, a copy of the insurance plan and retirement fund trust agreement , including information on the cost of these programs and how the cost is allocated, past classification and starting rates including progression schedules on each classification, past overtime provisions, past practices on part-time employees and on "disciplinary and discharge and safety rule book ," and on leave of ab- sences, including copies of forms signed by employees 275 NLRB No. 122 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the unit employees. In its answer to, the complaint the Company admits the receipt of the Union's in- formation request, but generally denies the relevan- cy of the requested information, and alleges that no bargaining obligation with the Union exists. It is well established that such information con- cerning bargaining unit employees is presumptively relevant for purposes of collective bargaining and must be provided on request to the employee's bar- gaining representative.4 Furthermore, -a union is not required to demonstrate the exact relevance of such information unless the employer has submitted evidence sufficient to rebut the presumption of rel- evance.5 Accordingly, since the information con- cerning unit employees requested by the Union is presumptively relevant and the Company has nei- ther rebutted this presumption nor shown that ma- terial issues of fact exist, we grant the General Counsel''s Motion for Summary Judgment as it re- lates to the Union's request for the information per- taining to the unit employees. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a corporation, is engaged in the manufacture, sale, and distribution of ceiling sys- tems at its facility in Vernon, California. Annually, in the normal course and conduct of its business ac- tivities, it sells and ships goods and products valued in excess of $50,000 directly to customers located outside the State of California. We find that the Company is an employer engaged in commerce within the meaning of Section 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 5 November 1981 the Union was certified on 30 January as the col- lective-bargaining representative of the employees in the following appropriate unit: All production and maintenance employees and shipping and receiving employees, includ- ing leadpersons, employed by Chicago Metal- lic Corporation at its facility at 5501 Downey Road, Vernon, California, excluding all other employees, office clerical employees, manage- rial employees, confidential employees, profes- ° See, e g, Mobay Chemical Corp, 233 NLRB 109, 110 (1977) s Fairfield Daily Republic, 275 NLRB 7 (1985), Grand Islander Health Care Center, 256 NLRB 1255 (1981) sional employees and guards and supervisors as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain By letter dated 7 February, the Union requested the Company to bargain and to provide it with cer- tain information concerning unit employees neces- sary for and relevant to the Union's performance of its function as the exclusive bargaining representa- tive of the unit employees. Since 7 February, the Company has refused to bargain with the Union. Since 26 February, the Company has refused to furnish the Union with the requested information. We find that these refusals constitute unlawful re- fusals to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after .7 February to bargain with the Union as the exclusive collective-bargain- ing representative of employees in the appropriate unit, and by refusing on and after 26 February to provide the Union with the requested information concerning unit employees, the Company has en- gaged 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 shall also order the Respondent, on request, to supply the Union with the information it requested which is necessary for and relevant to the Union's performance of its function as the exclusive repre-' sentative of the unit employees. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law; we shall construe the ini- tial 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). CHICAGO METALLIC CORP. - ' 873 ,ORDER The National Labor Relations Board orders that the Respondent, Chicago Metallic Corporation, Vernon, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a).-Refusing to bargain with Sheet Metal Work- ers' International Association, Local Union, 170, AFL-CIO, as the exclusive bargaining representa- tive of the employees in the bargaining unit. (b) Refusing to supply the Union with the infor- mation it requested which is necessary for and rele- vant to its role as exclusive bargaining representa- tive of the unit employees. (c) In' any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. . 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All production and maintenance employees and shipping and receiving employees, includ- ing leadpersons, employed by Chicago Metal- lic Corporation at its facility at 5501 Downey Road, Vernon, California, excluding all other employees, office clerical employees, manage- rial employees, confidential employees, profes- sional employees and guards and supervisors as defined in the Act. (b) On request, furnish the Union with the infor- mation it requested in its 7 February letter which is necessary for and relevant to the'Union's role as exclusive bargaining representative of the employ- ees in the bargaining unit. (c) Post of its facility in Vernon, California, copies of the attached notice -marked "Appendix. 916 Copies of the notice, on forms provided by the Re- gional Director for Region 21, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive 6 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " 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. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with the Sheet Metal Workers' International Association, Local Union 170, AFL-CIO (the Union), as the exclusive representative of the employees in the bargaining unit. - WE WILL NOT refuse to supply the Union with information it requested which is necessary for an relevant to its role .as exclusive bargaining repre- sentative of the unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise 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 production and maintenance employees and shipping and receiving employees, includ- ing leadpersons, employed by Chicago. Metal- lic Corporation at its facility at 5501 Downey Road, Vernon, California, excluding all other employees, office clerical employees, manage- rial employees, confidential employees, profes- sional employees and guards and supervisors as defined in the Act. WE WILL, on request, supply the Union with in- formation necessary for and relevant to its role as exclusive bargaining rerpresentative of the unit em- ployees requested in the Union's 7 February 1985. letter. CHICAGO METALLIC CORPORATION