American Marine Decking Systems, Inc.

AMERICAN MARINE DECKING SYSTEMS American Marine Decking Systems, Inc. and Shop- men's Local Union No. 627 of the International Association of Bridge , Structural & Ornamental Iron Workers, AFL-CIO. Cases 21-CA-23715 and 21-CA-23824 13 November 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON Upon charges filed by the Union 1 February and 1 April 1985, the Acting Regional Director for Region 21 of the National Labor Relations Board issued a consolidated complaint 28 May 1985 against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act. The complaint alleges that on 11 January 1;985, following a Board election in Case 21-RC-17446, the Union was certified as the exclusive collective- bargaining representative of the Company's em- ployees in the unit found appropriate. (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), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint fur- ther alleges that since 22 March 1985 the Company has refused to bargain with the Union, and since 25 January 1985 the Company has refused to furnish the Union requested information which is necessary for and relevant to its performance as the exclusive collective-bargaining representative. The Company denied committing the unfair labor practices al- leged and raised affirmative defenses. On 22 July 1985 the General Counsel filed a Motion for Summary Judgment. On 24 July 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. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Company admits its refusal to bargain and to furnish the Union with requested information, but attacks the validity of the certification on the basis that certain foremen, found to be employees within the meaning of Section 2(3) of the Act, were actually supervisors within the meaning of Section 2(11) of the Act and that their participation in the Union's organizing campaign tainted the Union's showing of interest. The Company further 433 contends that the Union received the requested in- formation in the form of testimony and subpoenaed documents produced at the representation hearing. The General Counsel argues that all material issues have been previously decided. We agree with the General Counsel. The record, including the record in Case 21- RC-17446, reveals that the Acting Regional Direc- tor for Region 21 issued a Decision and Direction of Election 4 October 1984, in response to which both the Company and the Union filed requests for review. On 1 November 1984 an election was held pursuant to the Decision and Direction. Thereafter, on 23 November 1984, the Board granted the Union's request for review and denied the Compa- ny's. In its Order, the Board found that two of the Company's foremen were supervisors within the meaning of Section 2(11) of the Act and that the Union's showing of interest had not been tainted. The Board modified the unit to include the remain- ing foremen. The tally of ballots shows that of approximately 71 eligible voters, 38 cast valid ballots for and 30 against the Union; there were 2 void ballots. The Company filed timely objections to the election, ar- guing that the Board, by modifying the unit after the election to include all but two foremen, disen- franchised a sufficient number of voters to affect the election results and caused the voters to be un- aware of the scope of the unit seeking representa- tion. The Company maintained that all its foremen were statutory supervisors and, further, that certain of those foremen's participation tainted the Union's showing of interest. On 11 January 1985 the Regional Director issued his Supplemental Decision and Certification of Representative, overruling the Company's objec- tions and certifying the Union as the exclusive rep- resentative of the employees in the unit. The Com- pany filed with the Board in Washington, D.C., a request for review of the Regional Director's deci- sion, which the Board denied on 14 March 1985. On 14 January 1985 the Union requested in writ- ing that the Company furnish the name, date of hire, rate of pay, and job classification or descrip- tion of each unit employee; and information about bonus or incentive plans, vacation benefits, any group insurance, welfare or pension plans, and any other fringe benefits applicable to unit employees. On 22 March 1985 the Union requested in writing that the Company contact it to schedule meetings for collective bargaining. Since 25 January 1985 the Company has refused to provide the requested information, and since 22 March has refused to bar- gain with the Union. 277 NLRB No. 42 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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(f) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Company were or could have been litigated in the prior representation pro- ceeding. The Company does not offer to adduce at a hearing any newly discovered and previously un- available evidence, nor does it allege any special circumstances that would require the Board to re- examine the decision made in the representation proceeding. There are no factual issues regarding the Union's request for information because the Company, in its amended answer filed 8 July 1985, admitted that it refused to furnish the information. 1 We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company is a California corporation en- gaged in the business of installing and removing marine decking and floor covering in United States naval vessels in San Diego County, California, with its main office located in San Diego, California, where it annually performs services valued over $50,000 for the United States Navy and purchases and receives goods and products valued over $5000 which originated outside the State. We find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the 1 The Company denied that portion of the complaint which alleged that the requested information was necessary for and relevant to the Union's performance of its function as the exclusive bargaining represent- ative of unit employees It is, however, well established that such infor- mation is presumptively relevant for the purposes of collective bargain- ing. Mobay Chemical Corp, 233 NLRB 109, 110 (1977) Accordingly, the Company's denial is insufficient to raise issues warranting a hearing We reject the Respondent's assertion that the Union received the infor- mation through the representation proceeding's testimony and subpoe- naed documents The Respondent never commumcated this to the Union, nor has it stated whether the information supplied previously is still valid or specified what changes have occurred, In fact, in its 25 January 1985 letter which rejected the Union's request, the Respondent simply stated that the request was premature In any event , it is well established that absent special circumstances, a party is not relieved of its obligation to furnish relevant information simply because the information may be available to the requesting party from another source . See, e g , Borden, Inc, 235 NLRB 982, 983 (1978), enfd in relevant part 600 F 2d 313 (1st Cis 1979), Kroger Co , 226 NLRB 512, 513 (1976) 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 1 November 1984, the Union was certified 11 January 1985 as the col- lective-bargaining representative of the employees in the following appropriate unit: All production and maintenance employees employed by the Employer installing and re- pairing marine decking and floor covering in the San Diego harbor area; excluding all other employees, professional employees, office cler- ical employees, guards and supervisors as de- fined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusals to Bargain Since 22 March 1985 the Union has requested that the Company bargain, and, since 14 January 1985, that the Company furnish the name, date of hire, rate of pay, and job classification or descrip- tion of each unit employee; and information about bonus or incentive plans, vacation benefits, any group insurance, welfare or pension plans, and any other fringe benefits applicable to unit employees. Since 22 March 1985 the Company has refused to bargain, and since 25 January 1985 has refused to furnish the requested information. We find that these refusals constitute unlawful refusals to bar- gain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing since 22 March 1985 to bargain with the Union, and by refusing since 25 January 1985 to provide the Union requested information neces- sary for and relevant to its function as the exclu- sive collective-bargaining representative of employ- ees in the appropriate unit, 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, and to provide the Union on request with the nec- AMERICAN MARINE DECKING SYSTEMS 435 essary and relevant information requested 14 Janu- ary 1985. 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). ORDER The National Labor Relations Board orders that the Respondent, American Marine Decking Sys- tems, Inc., San Diego, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Shopmen's Local Union No. 627 of the International Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO as the exclusive bargaining representa- tive of the employees in the bargaining unit, and refusing to provide the Union with information necessary for and relevant to the Union's perform- ance as the exclusive collective-bargaining repre- sentative. (b) 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 concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agreement, and provide the Union with the infor- mation it requested 14 January 1985, including the name, date of hire, rate of pay, and job classifica- tion or description of each unit employee; and in- formation about bonus or incentive plans, vacation benefits, any group insurance, welfare or pension plans, and any other benefits applicable to unit em- ployees: All production and maintenance employees employed by the Employer installing and re- pairing marine decking and floor covering in the San Diego harbor area; excluding all other employees, professional employees, office cler- ical employees, guards and supervisors as de- fined in the Act. (b) Post at its facility in San Diego, California, copies of the attached notice marked "Appendix."2 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 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. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. CHAIRMAN DOTSON, dissenting. I would deny the General Counsel's Motion for Summary Judgment and remand the proceeding for a hearing. In the underlying representation pro- ceeding I dissent from the majority position with respect to the requests for review filed by the Union and the Employer, and would have granted the Employer's requests for review alleging that supervisory foremen participated in the organizing campaign in a manner which tainted the Union's showing of interest among unit employees. 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 Nation- al 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 " 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 Shopmen's Local Union No. 627 of the International Associa- tion of Bridge, Structural & Ornamental Iron Workers, AFL-CIO as the exclusive representative of the employees in the bargaining unit and WE WILL NOT refuse to provide the Union information necessary for and relevant to the Union's perform- ance as the exclusive collective-bargaining repre- sentative. 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. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, on request, bargain with the Union and put in writing and sign my agreement reached on terms and conditions of employment for our employees in the bargaining unit: All production and maintenance employees employed by the Employer installing and re- pairing marine decking and floor covering in the San Diego harbor area ; excluding all other employees, professional employees, office cler- ical employees, guards and supervisors as de- fined in the Act. WE WILL, on request, furnish the Union the in- formation it requested 14 January 1985 , including the name, date of hire, rate of pay , and job classifi- cation or description of each unit employee ; and in- formation about bonus or incentive plans, vacation benefits, any group insurance, welfare or pension plans, and any other fringe benefits applicable to unit employees. AMERICAN MARINE DECKING SYS- TEMS, INC.