Hall Industries, Ltd.

HALL INDUSTRIES Hall Industries, Ltd. and International Union of Electronic, Electrical, Technical, Salaried & Machine Workers, Local 330, AFL-CIO and Lee Kaufman. Cases 3-CA-12815 and 3-RD- 862 26 August IL987 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION , BY CHAIRMAN DOTS01ST AND MEMBERS JOHANSEN AND BABSON On 30 June 1986 Adminisi,rative Law 'Judge D. Barry Morris issued the attached decision. The Charging Party filed exceptions and a supporting brief. The Respondent filed cross-exceptions and a supporting brief to which the General Counsel and the Charging Party each filed answering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light- of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions; to adopt the recommended Order; and to issue a Certification of Results of Election. The judge found, and we agree, that the Re- spondent violated Section 8(a)(5) and (1) of the Act by failing to provide the Union with requested rel- evant information. We also agree with the judge's finding that it has not been shown that the Re- spondent's failure to supply the requested informa- tion affected the conduct of the election. A decertification election was held on 22 May 1985 in Case 3-RD-862.1 The tally was eight votes for and eight votes against the Union. There were no challenged ballots. Before the election, the Union was informed on 10 April that a decertifica- tion petition had been filed. On 11 April the Union requested ' the Respondent to furnish it with the names and addresses of the unit employees, their dates of hire, job and shift assignments, wage rate, insurance costs, and status of the pension plan. The Respondent did not respond to the Union's request. On 9 May the Union again requested the informa- tion. The Respondent's president indicated that he had been busy but would provide the information right away. The Union did not receive the informa- tion until 7 August, more than 2 months after the election. On 30 May the Union filed timely objections to conduct affecting the results of the election con- tending, in part, that the Respondent's failure to ' All dates refer to 1985 unless otherwise specified. 285 NLRB No, 71 391 provide the requested information prevented the Union from participating fully and in a knowledge- able manner in the election.2 Upon a charge filed on 22 July, a complaint was issued on 28 August alleging that the Respondent , unreasonably and unduly delayed -furnishing the requested informa- tion to the Union in violation of Section 8(a)(5) and (1), of the Act in Case 3-CA-12815. Pursuant to a Board order issued on 26 November, Case 3-RD- 862 was remanded for a hearing and consolidated with Case 3-CA-12815. In his decision, the judge found that the informa- tion requested was relevant and necessary to the Union's collective-bargaining function. Although he found that prior to the election the Union had in its possession most of the information requested, the judge concluded that under B. F. Diamond Construction Co.,3 the Respondent was obligated to provide the information and its failure to do so in a timely manner violated the Act. We agree. Contrary to our dissenting colleague, we also agree with the judge that it is virtually impossible to conclude that the Respondent's conduct affected the election results. As stated in Clark Equipment Co., 278 NLRB 498 (1986), the Board, in determin- ing whether misconduct could have affected the re- sults of the election, considers "the number of vio- lations, their severity, the extent of dissemination, the size of the unit, and other relevant facts." Here, we have found but one violation. As noted, the judge found that the Union had most of the requested information.4 Thus, the Respondent's delay in supplying the information did not consti- tute a particularly severe violation., Further, at most, one employee (Shop Steward Melvin Berry) was aware of the Respondent's delay in supplying the requested information.5 Unlike our colleague,, we cannot infer dissemina- tion among unit employees. The mere fact that Berry may have had occasion to obtain certain in- formation from unit members does not warrant an 8 The Regional. Director recommended that the Union's objections be overruled in their entirety. 8 163 NLRB 161, 175-176 (1967), enfd 410 F 2d 462 (5th Or. 1969), cert. denied 396 U.S 835 (1969). 4 In these circumstances, we cannot agree with our colleague that the Union was at a "severe disadvantage" because of the Respondent's failure to supply "crucial" information If the Union already had most of the in- formation, the Respondent's delay in supplying it could have had only a minimal effect on the Union 5 The judge found no evidence that any unit employee knew before the election of the Respondent's failure to supply requested information However, we will not quarrel with our dissenting colleague that employ- ee and Shop Steward Melvin Berry must have known about the Re- spondent's conduct Berry attended the 9 May 1985 grievance meeting at which International Representative William Gaden reminded the Re- spondent's president, Richard Hall, that the Union had previously re- quested but not received certain information. Although Hall promised to get the information "right out," it was not received until 7 Angus( 1985. 392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD inference of dissemination. There is no evidence that Berry informed any employee that he was col- lecting information because the Respondent refused to supply it. As it would hardly be unusual for a shop steward to solicit information from unit em- ployees, this action warrants no inference of dis- semination of the Respondent's conduct.6 We have found one violation that was not severe. Only one employee knew of the Respond- ent's conduct. Thus, although the unit was relative- ly small add the vote close, we agree with the judge that the record fails to establish the Respond- ent's failure to supply the requested information had an adverse impact on the election.? We shall certify the results of the election. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Hall Indus- tries, Ltd., Rochester, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order. CERTIFICATION OF RESULTS OF ELECTION IT IS CERTIFIED that a majority of the valid bal- lots have not been cast for the International ' Union of Electronic, Electrical, Technical, Salaried & Machine Workers, Local 330, AFL-CIO, and that it is not the exclusive representative of these bar- gaining unit employees. MEMBER JOHANSEN, dissenting in part. Contrary to my colleagues, I would set aside the election in this case based on the Respondent's fail- ure to provide the Union with the requested infor- mation in a timely manner. I would not find, as the judge did, that "it is virtually impossible to con- clude that the misconduct could have affected the election results."' The Board has held that the de- termination of whether misconduct could have af- fected the election is based, in part, on the number of violations, their severity, the extent of dissemina- tion, the size of the unit, and other relevant fac- 6 Absent a finding of dissemination, we, of course, would not find, as does our dissenting colleague, that the Respondent 's conduct "would serve to demean" the Union in the eyes of employees Moreover, assum- ing dissemination, it is highly questionable whether the conduct involved would have a sufficient impact to "demean" a union. 7 Our holding is similar to the Board's recent holding in Wilshire Foam Products, 282 NLRB 1137 (1987). There, the Board adopted the judge's finding that an employer's unlawful refusal to supply information was not widely known among unit employees Accordingly, the Board also adopted the judge's conclusion that the employer's misconduct had no substantial impact on employees and did not taint a decertification peti- tion circulated subsequent to misconduct. i See Clark Equipment Co., 278 NLRB 498 (1986) tors.2 Although we find that the Respondent com- mitted only one violation, I believe, unlike my, col- leagues, that the severity of this conduct-which goes directly to the Union's representative status- requires that the election be set aside. As the judge found, the information requested by the Union was "wholly usual and conventional ... needed and invariably sought by and required to be furnished to bargaining representatives as es- sential to informed collective bargaining . . . . The General Counsel has shown that the Respond- ent failed to provide this information in a timely manner. This information was crucial to the Union as bargaining representative. Therefore, I would conclude that the Respondent's failure to, provide the information in a timely manner significantly interfered with the Union's function, placing it at a severe disadvantage at a time when it was facing a decertification election. I would infer dissemination in the circumstances of this case. I disagree with the judge's finding that there was no evidence that any bargaining unit em- ployee knew of the Respondent's failure to provide information prior to the election. Shop Steward Melvin Berry, a unit member, was present at the meeting on 9 May when the Union's International representative renewed the Union's earlier request for information and the Respondent's president ac- knowledged that the information had not been pro- vided. In addition, Berry testified that sometime in April or May he prepared, at the Union's request, a list of employees with addresses and telephone numbers, as well as each of the shift assignments. Although Berry might not have known exactly when the Union did receive the information, he was aware sometime prior to the election that the Respondent had failed to provide the requested in- formation. Moreover, as the Union, through Berry, had received some of the information from the unit members themselves, the employees were likely aware that the Union was having some difficulty obtaining crucial information from the Respondent. As the Union has argued in its exceptions, its fail- ure to secure important information would serve to demean it in the eyes of the employees in such a way that the conduct of election would be affect- ed. Finally, a finding that the Respondent's conduct interfered with the election is supported by the fact that the unit of about 16 employees was relatively small and by the fact • that the election could not have been any closer, with 8 votes for to 8 votes 2 Clark Equipment Co, ibid., Caron International, 246 NLRB 1120 (1979) Enola Super Thrift, 233 NLRB 409 (1977). 3 See Artcraft Ornamental Iron Co, 271 NLRB 829, 834 (1984) HALL INDUSTRIES 393 against the Union . Under these circumstances, I cannot conclude that it has been shown that the Respondent's failure to timely provide the Union with the requested information did not affect the conduct of the election. Accordingly, I would direct a new election. William B. Kenney, Esq., for the General Counsel. Jack D. Eisenberg, Esq. and Peter G. Smith, Esq. (Harter, Secrest & Emery), of Rochester, New York, for the Re- spondent. DECISION STATEMENT OF THE CASE D. BARRY MORRIS, Administrative Law Judge. This case was heard before me in Rochester, New York, on 10 and 28 January 1986 . On a charge filed on 22 July 1985,1 a complaint was issued on 28 August, alleging that Hall Industries, Ltd. (Respondent) violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). The complaint alleged that Respondent failed to provide certain information requested by International Union of Electronic, Electrical, Technical, Salaried & Machine Workers, Local 330, AFL-CIO (the Union). Respondent filed an answer denying the commission of the alleged unfair labor practices. Pursuant to a Stipulation for Certification Upon Con- sent Election, an election by secret ballot was conducted on 22 May. Eight votes were cast for, and eight were cast against, the Union. No ballots were challenged. On 30 May, the Union filed timely objections to conduct af- fecting the results of the election. On-2 July, the Region- al Director issued his Report on Objections, in which he recommended that the Union's objections be overruled. On 29 July, the Union filed exceptions to the Regional Director's recommendation and on 26 November, the Board reversed the Regional Director's recommendation concluding that further findings of fact were required concerning the "impact on the election of the Employ- er's alleged refusal to furnish information." The cases were consolidated for the purpose of hearing, ruling, and decision by an administrative law judge. The parties were given full opportunity to participate, produce evidence , examine and cross-examine witnesses, argue orally, and file briefs. Briefs were filed by the General Counsel and by Respondent. On the entire record of the case, including my observation of the de- meanor of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION admits that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and I so find. In addition, the Union is a labor orga- nization within the meaning of Section 2(5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICE A. The Issue The issue is whether Respondent's failure to supply in- formation requested by the Union was a violation of Sec- tion 8(a)(1) and (5) of the Act. B. The Facts 1. Request for information Since 1977 the Union has been the certified collective- bargaining representative of Respondent's production and maintenance employees . During March through May 1985 there were between 16 and 18 employees in the bar- gaining unit. On 10 April, the Union was informed that a petition had been filed to decertify it as the representa- tive of the unit employees . On 11 April, the Union re- quested Respondent to furnish it with the following in- formation: [T]he names, addresses, and phone numbers (if available) of all represented employees, their respec- tive original dates of hire, the jobs each individual is currently assigned to, the current rate of pay for each employee, and the shift to which each is as- signed. . . . The Company 's costs, and the cost to each employee (if applicable) for all items covered in Article VII . . . and the status of the Pension Plan together with any explanatory language you possess. William Gaden, International representative of the Union, testified that the information was requested both for purposes of collective bargaining and for the upcom- ing election. The Union received no response to its re- quest . Gaden testified that on 9 May, he attended a meet- ing with Richard Hall, president of Respondent, con- cerning a grievance over an employee's discharge. At the conclusion of the session , Gaden mentioned to Hall that "he owed me some information ." Hall replied that he would get the information "right out." Melvin Berry, the union steward , similarly testified: Mr. Gaden asked Mr. Hall about some informa- tion regarding the wages, that he had previously asked for. Mr. Hall replied that he had been busy, but he would have his secretary get on it right away. Hall Industries, Ltd., a corporation with a place of business in Rochester, New York, is engaged in the man- ufacture and nonretail sale and distribution of metal and plastic film reels and cans. It annually ships from its Rochester facility goods valued in excess of $50,000 to consumers located outside New York State. Respondent 1 All dates refer to 1985 unless otherwise specified. The information was not received until 7 August. The record indicates that the Union had in its posses- sion most of the information requested . Thus, on 1 May, Respondent submitted its Excelsior list, that included all of the employees in the bargaining unit with their home addresses. In addition, Gaden testified that the shop steward obtained a list of all the employees with their addresses. The Union was also given the employees' se- 394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD niority list in 1982 and for the employees who were hired after 1982 the Union had their authorization cards. Furthermore, in July 1984, a summary of the pension plan was distributed to all employees. Berry also testified that as union steward he knew the employees' average wage rate. I find that Respondent's failure to respond to the Union's request for information in a'timely manner vio- lated Section 8(a)(1) and (5) of the Act. The fact that the Union had access to or knew much of the information requested is not a defense. B. F. Diamond Construction Co., ibid. 2. Conclusions On 11 April, the Union requested information concern- ing the names and addresses of the unit employees, their dates of hire, jobs and shifts assigned to, wage rates, in- surance costs, and status of the pension plan. As noted in Artcraft Iron Co., 271 NLRB 829, 834 (1984), "these are wholly usual and conventional items of information, needed and invariably sought by and required to be fur- nished to bargaining representatives as essential to in- formed collective-bargaining." Nevertheless, Respondent failed to supply the information in a timely fashion. As was stated in Boyers Construction Co., 267 NLRB 227, 229 (1983): It is well established that a labor organization, acting in its capacity as collective-bargaining repre- sentative, is entitled, upon appropriate request, to information from the employer that is needed by such bargaining agent for the proper performance of its duties. The employer's obligation to supply relevant information is part of its general obligation to bargain in good faith and applies not only during the period of contract negotiations, but also during the term of an agreement. The initial request for information was made on 11 April and the request was renewed on 9 May. The elec- tion was not held until 22 May. Since the decision in Dresser Industries, 264 NLRB 1088 (1982), it has been clear that the mere filing of a decertification petition does not permit an employer to withdraw from bargain- ing or to fail to comply with relevant requests for infor- mation. Respondent contends that despite its failure to supply information in a timely fashion, the Union had access to virtually all the information. I have found that the Union did indeed have most of the information requested. Thus, it had the names, addresses, and phone numbers of the employees. It had a 1982 seniority list and knew which employees were hired since that date and their relative seniority. It also knew the average wages for the unit employees. In addition, copies of the summary of the current pension plan were distributed in July 1984. Nev- ertheless, Respondent had an obligation to provide the requested information. As stated in B. F Diamond Con- struction Co., 163 NLRB 161, 175-176 (1967), enfd. 410 F.2d 462 (5th Cir. 1969), cert. denied 396 U.S. 835: Clearly knowledge of existing benefits and policies were essential to the formulation of any intelligent proposal tailored to Respondents' operations. The reasons advanced by Respondents that the informa- tion was privileged or available from, the employees are clearly insufficient defenses to this conduct. III. OBJECTION TO THE ELECTION Reversing the Regional Director's recommendation dismissing the objection, the Board concluded that the objection requires further findings of fact "concerning the impact on the election of the Employer's alleged re- fusal to furnish information to its employees' collective- bargaining representative." I have previously found that the Union had in its possession prior to the election most of the information requested of Respondent. There was no evidence in the record that any delay in furnishing the information was ever communicated or disseminated to any employees in the bargaining unit. While Berry tes- tified that on 9 May Gaden asked Hall about " some in- formation regarding the wages, that he had previously asked for," Berry further testified that Hall replied that "he had been busy, but he would have his secretary get on it right away." There is no evidence in the record that Berry knew that the information was not provided prior to the election. In addition, neither the Union nor the General Counsel presented any evidence, nor does the record contain any evidence, concerning the impact on the election of Respondent's refusal to furnish the in- formation in a timely manner. In Metz Metallurgical Corp., 270 NLRB 889 (1984), the only objectionable conduct took place 17 days before the election. In certifying the election, the Board stated (ibid.): [W]e find that this single incident was de minimis with respect to affecting the results of the election. In determining whether certain conduct is de mini- mis, the Board takes into consideration the number of violations, their severity, the extent of dissemina- tion, the size of the unit, and other relevant factors. Caron International, Inc., 246 NLRB 1120 (1979). Similarly, in Mclndustries, Inc., 224 NLRB 1298 (1976), while upholding an unfair labor practice charge against the employer, the Board nevertheless certified the results of the election in the employer's favor since the unfair labor practice had no impact on the election (id. at 1304). In Clark Equipment Co., 278 NLRB 498 (1986), al- though the Board found violations of Section 8(a)(1), the Board nevertheless overruled the objections and certified the results of the election. The Board stated: In reaching this determination, we are cognizant that it is the Board's usual policy to direct a new election whenever an unfair labor practice occurs during the critical period since "[c]onduct violative of Section 8(a)(1) is, a fortiori, conduct which inter- feres with the exercise of a free and untrammeled choice in an election." However, the Board has de- parted from this policy in cases where it is virtually r HALL INDUSTRIES 395 impossible to conclude that the misconduct could have affected the election results. In determining whether misconduct could have affected the results of the election, we have considered "the number of violations, their severity, the extent of dissemina- tion, the size of the unit, and other relevant fac- tors." stances of the instant proceeding do not warrant the in- clusion of a visitatorial clause, On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER In the instant proceeding the only allegation of objec- tionable conduct is the failure to provide the information requested by the Union. There is no evidence in the record that any bargaining unit employees knew of the Respondent's failure to provide the information prior to the election. In addition, I have found that the Union had knowledge of most of the requested information. Al- though the Board's order of 26 November required a hearing for further findings of fact concerning the impact on the election of Respondent's refusal to furnish the re- quested information, neither the General Counsel nor the Union adduced such evidence nor does the record con- tain such evidence. As stated in Clark Equipment Co., ibid., "it is virtually impossible to conclude that the mis- conduct could have affected the election results." Accordingly, I find that it has not been shown that Respondent's failure to supply the requested information had an adverse impact on the election. I, therefore, rec- ommend that the Union's objection be overruled and that the appropriate Certification of Results of Election be issued. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3: By failing to respond in a timely manner to the Union's request for information, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practice constitutes an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in an unfair labor practice, I find it necessary to order Re- spondent to cease and desist therefrom and to take fur- ther action necessary to effectuate the policies of the Act. The General Counsel has requested that the recom- mended remedial order include a visitatorial clause, au- thorizing the Board to engage in discovery under the Federal Rules of Civil Procedure. Although such a clause may be appropriate in cases remedying discrimina- tory practices when it is necessary to determine backpay and reinstatement rights, I believe that a sufficient basis has not been demonstrated for its inclusion in this case. In O. L. Willis, Inc., 278 NLRB 203 (1986), the Board found it unnecessary to include a visitatorial clause in a case involving Section 8(a)(5) of the Act, even though a backpay award was imposed. I believe that the circum- The Respondent, Hall Industries, Ltd., Rochester, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to furnish relevant information in a timely manner, in the event there exists an exclusive collective- bargaining representative of Respondent's employees, and such representative requests the information. (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) Furnish relevant information in a timely manner, in the event there exists an exclusive collective-bargaining representative of Respondent's employees, and such rep- resentative requests the information, (b) Post at its facility in Rochester, New York copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Regional Director for Region,3, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable 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 Re- spondent has taken to comply. IT IS FURTHER ORDERED that the Union's objection to the election be overruled and it is recommended that the results of the election conducted on 22 May 1985 be cer- tified by the Board. 2 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 3 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 " 396 DECISIONS 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 Nationale Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to provide relevant information in a timely manner, in the event there exists an exclusive collective-bargaining representative of our employees, and such representative requests the information. 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 provide relevant information in a timely manner, in the event there exists an exclusive collective- bargaining representative of our employees , and such representative requests the information. HALL INDUSTRIES, LTD. -