American Marine Decking Systems, Inc.

National Labor Relations Board - Board Decisions

Nov 13, 1985

277 N.L.R.B. 433 (N.L.R.B. 1985)

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.