Local Union 497, International Brotherhood Of Electrical Workers, Afl-Cio

1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union 497, International Brotherhood of Elec- trical Workers, AFL-CIO and Apple City Elec- tric; Inc., J & M Electric, Inc., and Valley Electric Service of Wenatchee, Inc. Case 19- CB-5193, 31 July 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS ,Upon a charge 1 jointly filed by Apple City Electric, Inc., J & M Electric, Inc., Don H. Swartz Electric,. Inc., and Valley Electric Service of Wen- atchee, Inc.- (the Employers) on 14 June 1984, the General Counsel of the Nationa Labor Relations Board issued a complaint on 31 July 1984 against Local "Union 497, 'International Brotherhood of Electrical Workers-, -AFL-CIO' (the Respondent), alleging that' it has violated Section 8(b)(3) of the National Labor Relations Act. Copies of the charge and' complaint and-notice of hearing were served •on the parties.- On 14 August- 1984 the Re- spondent' filed an answer' to the-complaint and on 19 October 1984 if filed an amended answer deny- ing the commission of any unfair labor practice. On 7 February 1985 the parties filed a stipulation of facts and motion to transfer the case to the Board. The parties agreed that the stipulation of facts. and attached exhibits shall constitute the entire record in this case, and that no oral testinio= ny was necessary, or 'desired by any of the parties. The parties further waived a hearing before an ad- ministrative- law judge, the issuance of an adminis- trative law judge's decision, and submitted the -case directly to the Board for, findings of facts, conclu- sions of law,. and a Decision and Order. On 28 March-1985 the Board issued its order ap- proving the , stipulation and -.transferring the pro- ceeding' to the Board. Thereafter, the General Counsel and the Respondent filed briefs in support of their positions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel.' The' Board has considered- the stipulation and its' exhibits, the briefs, and the entire. record in this proceeding, and makes the following ' There m;tially was a fourth chaigmg party, Don H Swartz. Electric, Inc By letter dated 11 May 1985, the attorney for the four Charging Party Employers requested that the portion of the charge relating to Don H Swartz Electric, Inc be withdrawn On -3 June 1985 the General Counsel indicated he had no,objection to the withdrawal 275 NLRB No. 176 FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYERS Apple City Electric, Inc., J & M Electric, Inc., and Valley Electric Service of Wenatchee, Inc. are State of Washington corporations engaged in the business of electrical contracting. During the 12- month period ending on 31 July 1984, which period is representative of all times material herein, each of these Employers sold and shipped goods or provided services from its facilities within the State of Washington to customers located outside the State, or sold and shipped goods or provided serv- ices to customers within the State, which custom- ers themselves are engaged in interstate commerce by other than indirect means, of a total value in excess of $50,000. The parties stipulated, and we find, that Apple City Electric, Inc., J & M Elec- tric, Inc., and Valley Electric Service of Wenat- chee, Inc., respectively, are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that the Re- spondent, Local Union 497, International Brother- hood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Stipulated Facts The Employers were signatories, through their membership' in the National Electrical Contractors Association (NECA), to a 2-year contract with the Respondent that expired on 30 June 1984. In Janu- ary 19842 the Employers withdrew their assign- ment of bargaining rights from NECA and in- formed NECA and the Respondent that each em- ployer would bargain for a new contract on an in- dividual basis. About 31 March each employer timely notified the Respondent of the intent to amend or terminate the expiring contract. Between 25 April and 17 July, the parties met six times in efforts to negotiate a successor agreement. Richard Alli' jointly represented the Employers during the negotiations. At the first bargaining session on 25 April, Alli informed the Respondent that the Employers were proposing changes in the referral system. The ex- piring contract contained provisions requiring the Employers to use the Respondent's hiring hall as the exclusive source of applicants for employment. 2 All dates herein are in 1984, unless otherwise noted ELECTRICAL WORKERS IBEW LOCAL 497 -(APPLE CITY ELECTRIC) 1291 Alli said that the Employers were concerned about the qualifications of employees referred by the Re- spondent, as well as the 48-hour provision for filing referral requests which had caused delays in meet= ing the Employers' employment needs. The parties had not reached agreement. on this issue as of the date they entered into the stipulations of facts. During the bargaining session held on 19 May, Al11 made a verbal request for the names and ad- dresses of all of the Respondent's members who were subject to the referral system under the then- existing contract. Although it refused to furnish this information, the Respondent told' Alli that its referral books were open for inspection, but not for copying, by any of the Employers. The Respond- ent further' stated, however, that Alli himself would not be permitted to see the referral books. On 24 May Alli made a written request for 'this in- formation which the Respondent also rejected: The Respondent has a policy of refusing to release-in- formation about its members unless the particular member involved signs a release :or there is. a. court order directing the Respondent to furnish the infor- mation. The Respondent does allow its members'to inspect the list of its members and their addresses, but it does not allow its members to copy the mem= bership lists. * B. Contentions of.the Parties The General Counsel-argues that the information the Employers sought is clearly relevant to - bar- gaining and must be disclosed by the Union upon the demand of the Employers. The General Coun- sel emphasizes that the-Employers requested infor- mation regarding the referral system during con-, tract negotiations and that Alli explained the infor- mation was relevant to the Employers'' concerns about applicants' qualifications as well as to prob- lems with the 48-hour provision., In contending that the Respondent's refusal to provide such informa- tion violated Section 8(b)(3) of the Act, the Gener- al Counsel- relies on Asbestos Workers Local 80 (West Virginia Insulators), 248 NLRB 143 (1980), and Printing &' Graphic Communications Local 13 (Oakland Press Co.), 233 NLRB 994 (1977),, where, the Board found that the unions unlawfully refused to provide similar information. Finally, the General: Counsel asserts, contrary to the Respondent's.posi- tion, that the information requested here is not con- fidential and does not invade union members' rights to privacy. The Respondent argues that compelled disclo- sure of its membership list would infringe upon the members' first amendment rights under the Consti- tution. It further contends that release of,'such in- formation also is precluded by the Landrum-Griffin Act which was carefully drafted to preserve the confidentiality of union lists by giving members themselves the right only to inspect membership lists. The Respondent emphasizes that in Teamsters v. 'Goldberg, 303 F.2d 402 (D.C. Cir. 1962), the. court was reluctant to allow even the United States Secretary,of Labor to possess a copy of the union's membership list in the absence of assurances that the list would' not be available to outside sources. While it does not dispute the applicability of West Virginia Insulators and Oakland Press to the present situation, the Respondent argues that the Board did not consider in those cases the first amendment and, confidential defenses being raised here: Finally, the Respondent contends that its offer to supply the re- quested information by allowing the Employers to see the' referral books was sufficient to meet its bar- gaining obligation. In so contending, the Respond- ent points out that in American Cyanamid Co., 129 NLRB 683 (1960), the Board found no violation because the adamant insistence of the union-. on its right- to have the employer's. records in the request- ed form precluded a test of the employer's. willing- ness to provide the information- on mutually satis- factory terms. - C. Discussion and Conclusions The Respondent's brief does not contest the rel- evancy of the information the Employers have sought in this case,3. and the information sought here clearly is-relevant and necessary to the collec- tive=bargaining • process. Thus, in Oakland Press, supra, the, Board found that a union's refusal to provide information. similar to that requested here violated Section 8(b)(3) of the -Act.4 Furthermore, the Board later reached the same conclusion re- garding relevance in West Virginia Insulators, supra, where the employer had requested " a list of all em- ployees [the union] has currently placed on jobs or are on [the union's]-out-of-work- list with the desig- nation after . each name as to-the four groups to which they are assigned."5 3 The Respondent's answer denied the complaint's relevancy allega- tion _ • - 4 In Oakland Press, the union had exclusive control over the referral of employees During negotiations for a new contract, a question about re- ferrals arose, and the employer sought information about the availability of referrals for the previous 6 months. The information was found rele- vant, and the refusal to supply such information was- found to be an 8(b)(3) violation . 5 The stipulated facts in this case show that the Employers originally requested the names and addresses of all of the Respondent's members who were subject to the referral procedures We note, however, that on p 2 of their 24 May letter requesting information on the' Respondent's referral procedures, the Employers specifically stated that they sought "a list of the names and addresses of persons subject to the referral proce- dure " Based on our decision in West Virginia Insulators, supra, we find that the latter request clearly falls within the scope of information which is necessary and relevant to bargaining and, as such , constitutes the basis upon which we decide this case 1292 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD As noted above, the Respondent defends its re fusal to provide. the information on' the grounds that the information, requested is,either- confidential' or protected from compelled disclosure -by the first amendment to. the Constitution. The Respondent, relying on NLRB v. Detroit Edison Co., -440 U.S. 301 (.1979), argues that disclosure of -its membership.-, lists would, subject its members to discriminatory treatment by, the Employers. There- is nothing in the stipulated -record, however, to support the Re- - spondent's. asserted- concern that : the Employers will engage in harassing or unlawful conduct. Since - there is no € `-`clear and -present" - danger. justifying - the' refusal to supply. the information, -the first amendment cases the : Respondent relies . upon-are inapplicable here.6 Likewise, the Respondent' s ,reli- - ance 'on the LMRDA' is also misplaced, .particular- . ly in -light of:our determination as to the type of information the 'Employers:, seek (see fn. 5, supra). - We also find no 'merit in the Respondent's confi- dentiality- defense. -In -reaching this conclusion, we particularly emphasize our finding,, supra at-foot- note 5,,-that the.-Employer is not seeking the Re- spondent's: membership list, but rather a list of ap- plicants who utilize the hiring hall . In this • case. the Respondent has not demonstrated a valid reason such information - should be - kept confidential. Indeed, the customary practice in .private industry is for job applicants. to furnish their names and -ad- dresses to prospective employers. The-Respondent further' contends that it fulfilled any bargaining obligation to, the Employers i by giving them the opportunity to view the. referral,. registers . Contrary to the- Respondent, we do'-riot find • that this offer was sufficient- to satisfy the Em- ployer's bargaining needs. The stipulated facts show that the Respondent *-would not permit the Employers- to- make copies of the referral lists. Generally; the records maintained by' unions oper- ating hiring halls for multiemployer associations, such as'the one in which these Employers-had been members, are so detailed that -no' ordinary person - viewing them could possibly memorize all' the rele- vant -information contained - therein. We further note that the Respondent also refused to allow. Alli himself-to see the referral books. As the 'Employ- ers'•-bargaining representative, Alli clearly was enti- tled to, any information necessary;. for bargaining purposes.7 It is also clear that the Employers were 6. See generally .NLRB v Associated General Contractors of California, 633 F 2d 766,.772 (9th Cir 1980) 7 The parties stipulated that the refusal to allow Alli to see the referral books is not material "if included to show interference with the selection of an employer representative" as it is not supported by a charge' We have not relied on this fact in that.fashion, but deem it relevant in assess- ing the Respondent's. argument that it,provided, adequate access to the referral books not simply seeking information about the manner in which the Respondent operated the referral system provided for in the contract. Rather, the Employ- ers wanted a - list of all applicants who, registered at the hall because they were, concerned about their work qualifications. Thus, the information the Re- spondent offered to provide. (the, referral lists) was not responsive to the Employers' request (list of those subject to referral). . For these reasons, we.- conclude that the Re- spondent has violated Section 8(b)(3) of the Act by refusing to, disclose, on request, information which is relevant to the collective-bargaining process. Ac- cordingly; we shall order that the Respondent, on request, furnish J & M Electric, Inc. and Valley Electric- Service of Wenatchee, Inc. with a list of the names and addresses of those persons subject to the referral system as the Employers requested in their, letter of 24 May 1984.8 REMEDY Having found that the Respondent has engaged in and - is engaging in unfair labor practices within the meaning of Section 8(b)(3) of the Act, we shall order if -to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, we shall order that the' Respondent, on request, furnish J & M Elec- tric, Inc. and Valley Electric Service of Wenat- chee, Inc. with the information, they requested in their letter of 24 May. 1984. CONCLUSIONS OF LAW 1. Apple City - Electric, Inc., J & M Electric, Inc., and Valley Electric Service of Wenatchee, Inc., - respectively, are employers engaged in com- merce within the meaning of Section 2(2),- (6), and (7)'of the Act.' - - 2..The Respondent, Local Union 497, Interna- tional Brotherhood of Electrical Workers, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees of Apple City Elec- tric, Inc., J & M Electric, Inc.,.and Valley Electric Service of Wenatchee, Inc., respectively, each con- stitutes a separate unit appropriate for the purposes of'collective bargaining within the meaning of Sec- tion' 9(b) of the Act: All employees employed in the classifications of journeyman wireman, journeyman techni- cian and apprentices, excluding all other em- 8,Smce the Respondent was decertified as the bargaining representative of Apple City Electric's employees on 31 October 1984, we shall 'not order the Respondent to furnish the requested information to this Em- ployer ELECTRICAL WORKERS IBEW LOCAL 497 (APPLE CITY ELECTRIC) 1293 ployees, guards and supervisors as defined in' the Act. 4 At all times material to this proceeding, the Respondent has been , and continues to, be, the 'ex- elusive - representative for,the purposes of collective bargaining within the meaning of Section -9(a) of the Act of employees ill the above-described- units employed by' J & M -Electric, Inc., and Valley Elec- tric Service of Wenatchee,-Inc., respectively. 5. The Respondent has violated Section 8(b)(3) of the Act by failing and refusing to furnish , pursu- ant to the Employer's requests, information rele- vant and necessary to the' collective -bargaining process. 6. The aforesaid unfair - labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ` ' • • • ORDER The National Labor Relations Board orders that the Respondent, Local Union 497, International Brotherhood of Electrical. Workers, AFL-CIO, its officers, agents, and representatives , shall. 1. Cease and desist from ' • (a) Refusing to bargain , collectively with Apple City Electric, -Inc., J . & . M Electric, Inc., -and Valley Electric Service of Wenatchee, Inc., respec- tively, by refusing' tO. furnish them with information relevant and necessary to the collective -bargaining , process. • , - (b) In any like or related manner engaging in' conduct -in derogation of its -statutory duty to bar- gain in good faith. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. ' V (a) On request,' furnish J & M -Electric , Inc-. and Valley Electric Service of - Wenatchee, ' Inc. with the information they requested in their letter of 24 May 1984; that is, a list of names and addresses of all persons subject to the referral ` procedure pro- vided for in the then-existing collective-bargaining agreement. % (b) Post at all places where notices to employees, applicants for referral, and 'members are posted copies of the attached notice marked "Appendix."9 Copies of the notice, on forms provided by th6' Re- gional Director for' Region 19,: after being 'signed'` by the Respondent's authorized ' representative,-- shall be posted by the Respondent, immediately upon receipt and maintained ,.for.; 60. consecutive 9 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 " - - ,i. days in . conspicuous places including all places where notices to members 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. (c) Forward to Apple City, Electric, Inc., J & M Electric, Inc., and Valley Electric Service of Wen- atchee, Inc. for posting at their respective facilities, if these Employers are willing, copies of such no- tices duly signed by the Respondent's representa- tive: ' (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 MEMBERS 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. Section 7 of the Act gives employees these rights. To organize ' To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- -tection ' To choose not to engage in any of these protected concerted activities. ' - WE WILL NOT refuse to bargain collectively with, Apple City Electric, Inc., J & M Electric, Inc., and Valley Electric Service of Wenatchee, Inc., respec- tively, by' refusing to furnish them with information relevant and necessary to the collective-bargaining, process. ' WE WILL NOT -in any like or related manner engage in conduct in derogation 'of our statutory duty to bargain in good faith with .the above- named Employers. - WE' WILL, on request, furnish J & M Electric, Inc. and Valley, Electric Service of Wenatchee, Inc., with a list of the names and addresses of all persons;subject to' the referral procedure provided for `in our most recent collective-bargaining agree- ment with these Employers that expired on 30 June 1984. • LOCAL UNION 497, INTERNATIONAL BROTHERHOOD OF• ELECTRICAL - WORKERS; AFL-CIO ' '