Rbh Dispersions, Inc.

RBH DISPERSIONS RBH Dispersions, Inc. and Oil, Chemical and Atomic Workers International Union, Local 8- 622, AFL-CIO. Case 22-CA-14890 27 November 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 10 July 1987 Administrative Law Judge Joel P. Biblowitz issued the attached decision. The Re- spondent filed exceptions and a supporting brief, as well as a motion for reconsideration.I 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 conclusions2 and to adopt the recommended Orders as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, RBH Dispersions, Inc., Bound Brook, New Jersey, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). "(a) Furnish to the Union, on request, a copy of the sales-purchase agreement between the Re- spondent and BASF/Inmont Corporation, entered ' The Respondent moves to reopen the hearing to consider additional evidence in the form of a letter allegedly from the Union to the arbitrator assigned to the separation pay grievance dated 20 July 1987 stating that the Union was withdrawing the arbitration against the Respondent and was proceeding only against the seller. The Respondent's motion is denied inasmuch as the status of the Union's arbitration against the Re- spondent does not affect the central issue of this case, i e., that the Re- spondent possesses, and the Union requested, information probably or po- tentially relevant to the execution of the Union 's statutory duties and re- sponsibilities as the unit employees' exclusive bargaining representative. 1 We agree with the judge's conclusion that the sales purchase agree- ment between BASF and the Respondent is relevant to the Union's duties to represent the unit employees . In so doing we stress that on four occasions Carl Pauzner, "labor representative" for the seller, told Union President Umar that the seller was not responsible for the Union 's griev- ances because as part of its agreement of sale with the Respondent, the Respondent assumed those liabilities. Thus, one of the parties to the sales- purchase agreement repeatedly stated that information relevant to the Union's grievances was contained in the agreement. a The Respondent excepted to, inter aba, the failure of the judge to order that the Respondent be permitted to exclude, as confidential infor- mation, financial data of the sales-purchase agreement Therefore, in com- plying with our Order, the Respondent may first delete the sales prices contained in the agreement. The Union may see, study, and use the infor- mation provided to the extent required to protect the rights of the unit employees, but shall not otherwise disclose the sales -purchase agreement to the employees or others. 1185 into in November 1986, with the sales prices delet- ed.„ 2. Substitute the attached notice for that of the administrative law judge. 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 collectively with Oil, Chemical and Atomic Workers International Union, Local 8-622, AFL-CIO by refusing to fur- nish the Union with the sales-purchase agreement. 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 furnish to the Union, on request, a copy of the sales-purchase agreement we entered into with BASF/Inmont Corporation, during No- vember 1986, with the sales prices deleted, in order to assist the Union in protecting the rights of em- ployees covered by the Union's bargaining agree- ment with us. RBH DISPERSIONS, INC. Marta Figueroa, Esq., for the General Counsel. Martin Gringer, Esq. (Marshall M. Miller Associates, Inc), for the Respondent. DECISION STATEMENT OF THE CASE JOEL P. BIBLowrrz, Administrative Law Judge. This case was heard by me on 13 May 19871 in Newark, New Jersey. The complaint which issued on 8 April and was based on an unfair labor practice charge filed on 25 Feb- ruary by Oil, Chemical and Atomic Workers Internation- al Union, Local 8-622, AFL-CIO (the Union) alleges that RBH Dispersions, Inc. (Respondent) violated Sec- tion 8(axl) and (5) of the Act by failing and refusing to supply the Union with information it requested, informa- tion that is necessary for, and relevant to, the Union's performance of its function as the collective-bargaining representative of Respondent's employees. On the entire record, including the briefs received from the parties, I make the following ' Unless indicated otherwise , all dates referred to are for the year 1987. 286 NLRB No. 118 1186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION STATUS There being no dispute, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and the Union is a labor organization within the meaning of Section 2(5) of the Act. II. FACTS AND ANALYSIS The Union had a collective-bargaining agreement with BASF/Inmont (BASF), covering the following employ- ees at its Bound Brook, New Jersey plant: all employees, but excluding technical and laboratory employees, office and clerical employees, executives, watchmen, foremen, and all other supervisory employees. Respondent, in its answer, admits that this is an appropriate unit (except that the complaint refers to "all production and mainte- nance employees" rather than "all employees.") This agreement, which was effective for the period 15 Sep- tember 1984 through 18 September 1987, also provides for separation pay for the employees. The provision states: The purpose of the Separation Plan is to provide fi- nancial assistance to employees whose jobs are eliminated due to the closing of the Company's Fac- tory Lane, Bound Brook, New Jersey plant. The agreement also contained the following successors and signs clause: This Agreement, any supplements or amendments thereto, hereinafter collectively as "Agreement", shall be binding upon the parties hereto, their suc- cessors and assigns. Counsel for Respondent stated that about 4 November 1986 Respondent entered into an agreement to purchase the assets of BASF. Regardless, it was not until Friday, 5 December 1986, that the employees were informed that beginning Monday, 8 December 1986, their employer would be Respondent, rather than BASF. Respondent took applications from all the employees (approximately 46) and hired all but 2, Charles Pfeiffer and Pat Izzo.2 Negotiations between Respondent and the Union com- menced shortly thereafter; in addition to the usual de- mands of both parties, the Union demanded the reinstate- ment of Izzo and Pfeiffer. On 8 December the Union filed three grievances: two were against "BASF Inmont and Polychrome" (another name for Respondent) and alleged that Pfeiffer and Izzo were improperly not rehired by Respondent. The other, filed against "BASF Inmont,"s alleges that separation pay (also referred to in the grievance as severance pay) should be paid to the employees because they were sev- ered from their employment by BASF Inmont. Respond- ent's response to the grievances involving Pfeiffer and 2 There is no 8(a)(3) allegation in this regard s Although this grievance only names "BASF Inmont," Union Presi- dent Angie Umar testified that it is pending against both BASF and Re- spondent. Izzo was that it was not bound by the prior agreement and was not obligated to retain all former employees. As to the grievance involving separation pay, Respondent's response was: "Inasmuch as this grievance is directed to BASF Inmont, we, RBH Dispersions (Polychrome) are not in a position to respond to same. Accordingly, this grievance is denied on behalf of RBH Dispersions." The record contains no response from BASF to any of these grievances. About February, Respondent and the Union entered into a collective-bargaining agreement effective 8 De- cember 1986 through 15 January 1990. This agreement also contains a separation pay provision as well as a suc- cessors and assigns provision. In addition, the parties en- tered into a memorandum of agreement providing that Pfeiffer would be re-employed by Respondent for a pro- bationary period; this memorandum of agreement did not provide for the employment of Izzo. At that time the Union withdrew the Pfeiffer grievance; the Izzo griev- ance and the separation pay grievance are still pending. Beginning in early January, Umar called Carl Pauzner, a "labor representative" for BASF, to discuss these grievances. On each of four occasions Pauzner told him that BASF was not responsible for these grievances be- cause as part of its agreement of sale with Respondent, Respondent assumed those liabilities. After each of these conversations with Pauzner, Umar called John Mitzak, Respondent's plant manager and told him that Pauzner said that Respondent had assumed the liabilities pursuant to its agreement with BASF. Mitzak told him that Re- spondent was taking the position that they were respon- sible only for what occurred after 8 December 1986. Umar asked Mitzak on that occasion, and later occasions, for a copy of its agreement with BASF to purchase the Bound 'Brook facility. On 26 February Umar wrote to Mitzak requesting "the condition of sale" (BASF sale of the Bound Brook plant to Respondent.) The letter concluded: "I am re- minding you that I need this information so that I can properly represent the bargaining unit employees." The Union has never received a copy of this agreement. As to the reason the Union wants a copy of this agreement, Umar testified: "All we want to know is that who's re- sponsible for separation pay and who is responsible for the termination of Pat Izzo." Under well-settled Board law an employer must pro- vide a union with requested information "if there is a probability that such data is relevant and will be of use to the union in fulfulling its statutory duties and responsi- bilities as the employees' exclusive bargaining representa- tive." Associated General Contractors of California, 242 NLRB 891, 893 (1979); NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). Obviously, a union's statutory duties include the processing of grievances. In Washington Gas Light Co., 273 NLRB 116 (1984), the Board stated that the test is "whether the information sought is probably or potentially relevant to the execution of those statutory duties." "It is not the Board's function in this type case to pass on the merits of the Union's claim that Respond- ent breached the collective-bargaining agreement or .. . committed an unfair labor practice." NLRB v. Rockwell- RBH DISPERSIONS 1187 Standard Corp., 410 F.2d 953 at 957 (6th Cir. 1969). In Pfizer, Inc., 268 NLRB 916 at 918 (1984), the Board stated: "Thus, information need not necessarily be dis- positive of the issue between the parties, it need only have some bearing on it." In Westwood Import Co., 251 NLRB 1213 (1980), the Union requested information regarding the sale and change of ownership of the company in order to deter- mine the successorship obligations , if any, of the new owner. In fording that the employer had to furnish this information to the union, the administrative law judge stated: .. . since the sale of the business vitually affected the employees terms and conditions of employment, I am persuaded that information concerning the sale was relevant to the union's duty to nntelligently rep- resent the employees in the certified unit. In Washington Star Co., 273 NLRB 391 at 396 (1984), the administrative law judge, as affirmed by the Board, stated: Here, the bargaining agreement provides that in the case Respondent merges with another, or is ac- quired, "or consolidates its business . . . or changes its operations in any manner," the resulting publish- er shall be bound by the lifetime job guarantee in the bargaining agreement . Two facts are self-evi- dent: unit employers [sic] who were guaranteed life- time jobs by the bargaining agreement have been dismissed from their employment by Respondent and, as part of the circumstances involved, Re- spondent has transferred the building in which these employees were employed and apparently a major part of its equipment to another publisher by terms of a written document which Respondent refuses to disclose. In the circumstances there is not only a probability that the sales agreement would be useful to the Union in deciding whether to file a grievance on behalf of the unit employees or take other action against Respondent for failing to comply with the bargaining agreement, but the document is probably essential to that purpose. Respondent's brief, although acknowledging NLRB v. Acme Industrial and Washington Star, supra, submits that its refusal to supply the Union with a copy of its agree- ment with BASF was lawful because the agreement is not relevant to the grievances involved. As regards the Union's separation pay grievance, the agreement is clear- ly relevant. Although the grievance might appear, on its face, weak because the employees did not lose any pay because of the sale of the Company, that is for an arbi- trator, not me, to determine. The only way the Union can be certain who, if anyone, is responsible for separa- tion pay is by seeing the sales agreement between BASF and Respondent . It may provide that BASF is responsi- ble for such obligations, and then Respondent would be free of this obligation. On the other hand, it may provide that Respondent ' is responsible for such liabilities. In either case, this situation presents a clear illustration of why the Board and the courts require employers to pro- vide relevant information to their employees representa- tives: so that they can intelligently represent their mem- bers without wasting time and effort due to the lack of information. When Respondent provides the Union with this agreement, the Union can intelligently pursue the grievance. The same is true regarding the grievance over Respondent's refusal to hire Izzo. BASF and Respondent had overlapping contracts with the Union, and each con- tained provisions prohibiting discrimination for union ac- tivities, as well as for reasons of race, color, religion, age, or sex. The failure to hire Izzo was therefore a grie- vable matter; the question is, against whom? The agree- ment between BASF and Respondent might provide the Union with the answer. It is therefore relevant and must be provided to the Union. CONCLUSIONS OF LAW 1. Respondent is 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. The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: all pro- duction and maintenance employees at the Employer's plant located on Factory Lane, Bound Brook, New Jersey, excluding all technical and laboratory employees, office and clerical employees, executives, watchmen, foremen, and other supervisory employees. 4. At all times material, the Union has been the exclu- sive representative of the employees in the appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. Respondent has violated and continues to violate Section 8(a)(1) and (5) of the Act by failing and refusing the Union's demand for a copy of the sales agreement, Respondent entered into with BASF on 4 November 1986 to purchase the assets at the Bound Brook facility, the agreement being relevant and necessary to the Union's obligations to administer and enforce its collec- tive-bargaining agreements with Respondent and BASF. 6. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent has violated and continues to violate the Act by failing and refusing to grant the Union's demand for a copy of the sales agree- ment between Respondent and BASF Inmont Corpora- tion, entered into in November 1986, it will be recom- mended that Respondent cease and desist therefrom and supply the Union, on request, with that document. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' 4 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- Ioses 1188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The Respondent, RBH Dispersions, Inc., Bound Brook, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively with Oil, Chemical and Atomic Workers International Union, Local 8-622, AFL-CIO (the union) by refusing to furnish the Union with a copy of the sales-purchase agreement between Respondent and BASF/Inmont Corporation entered into during November 1986, or other information relevant and reasonably necessary to the Union 's duty to adminis- ter and enforce the collective-bargaining agreement be- tween the Union and Respondent. (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 to the Union, on request, a copy of the sales-purchase agreement between Respondent and BASF/Inmont Corporation, entered into in November 1986, in accordance with the provisions of the remedy section. (b) Post at its Bound Brook, New Jersey location copies of the attached notice marked "Appendix."b Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Re- spondent'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 Respond- ent 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. 5 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."