Audio Engineering

National Labor Relations Board - Board Decisions

May 14, 1991

302 N.L.R.B. 942 (N.L.R.B. 1991)

942
302 NLRB No. 152
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Audio Engineering, Inc. and International Brother-
hood of Electrical Workers, AFL–CIO, Local
364. Case 33–CA–8924
May 14, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
Upon an unfair practice charge filed on December
18, 1989, by the International Brotherhood of Elec-
trical Workers, AFL–CIO, Local 364 (the Union), the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 33, issued
a complaint and notice of hearing on January 16, 1990,
alleging that the Respondent, Audio Engineering, Inc.,
violated Section 8(a)(5) and (1) of the Act by failing
and refusing to provide information requested by the
Union. The Respondent filed a timely answer admit-
ting in part and denying in part the allegations of the
complaint.
On June 14, 1990, the General Counsel, the Union,
and the Respondent filed with the Board a stipulation
of facts and motion to transfer the case to the Board.
The parties stated that the stipulation and the attached
exhibits constituted the entire record in this case and
that they waived a hearing and decision by an adminis-
trative law judge. On September 24, 1990, the Board
approved the stipulation and transferred the proceeding
to the Board for issuance of a decision and order.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record and briefs, the Board makes the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Illinois corporation with an of-
fice and place of business in Loves Park, Illinois, is
engaged in the business of selling, installing, and serv-
icing sound and alarm systems. During the 12-month
period preceding execution of the stipulation, a rep-
resentative period, the Respondent, in the course and
conduct of its operations, purchased and received
goods and materials valued in excess of $50,000 di-
rectly from sources outside the State.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Respondent and the Union were parties to a col-
lective-bargaining agreement concerning wages, hours,
and terms and conditions of employment of employees
in the following appropriate unit:
[A]ll employees of the Employer regularly en-
gaged in installing, manufacturing, assembling
and maintaining the following systems: sound and
intercom, protection alarm (security), fire alarm,
master antenna television, closed circuit tele-
vision, low voltage control for computers and/or
door monitoring, school communication systems,
telephones and servicing of nurse and emergency
call. This agreement also covers the installation
and maintenance of transmit and receive antennas,
transmitters, receivers, and associated apparatus
which operates in conjunction with the above sys-
tems.
The most recent collective-bargaining agreement was
in effect from July 1, 1986, through June 30, 1989.
That agreement was entered into pursuant to Section
8(f) of the Act. On expiration of that contract, the Re-
spondent and the Union commenced bargaining, but no
new collective-bargaining agreement was reached.
Four months after the contract’s expiration, by letter
dated November 20, 1989, the Union requested that
the Respondent furnish it with certain information re-
lated to transactions which had occurred prior to the
contract’s expiration. More specifically, the letter stat-
ed that
[c]ertain questions have arisen as to whether
Audio Engineering paid wages and fringe benefits
in accordance with that contract, and Local 364 is
now conducting an investigation for the purpose
of making sure that the Company complied with
its contractual obligations.
Accordingly, Local 364 requests that the Com-
pany make the following information available to
the Union for inspection:
1. Any and all payroll records of individuals
who performed work covered by the Agreement
for the Company, from July 1, 1986 through June
30, 1989.
2. Any and all time records, time sheets and/or
work orders relating to work covered by the
Agreement, which was performed by the Com-
pany from July 1, 1986 through June 30, 1989.
3. Any and all tax records involving the pay-
ment of state and federal taxes on behalf of indi-
viduals who performed work covered by the
943AUDIO ENGINEERING
1 282 NLRB 1375 (1987), enfd. sub nom. Iron Workers Local 3 v. NLRB
(John Deklewa & Sons), 843 F.2d 770 (3d Cir. 1988), cert. denied 109 S.Ct.
222 (1988).
2 The Charging Party notes that the expired agreement contained a broad
grievance and arbitration clause and set forth no time limit for filing griev-
ances. Thus, according to the Charging Party, if the Respondent had provided
the requested information to it and a determination had been made that Audio
Engineering, Inc. had failed to comply with its obligations under the agree-
ment, the Charging Party could have filed a grievance regarding the matter.
Agreement for the Company, for the period July
1, 1986 through June 30, 1989.
At the time the stipulation of facts was entered into,
no grievance had been filed by the Union regarding
those matters that precipitated the information request.
Moreover, the contract does not provide for a time
limit within which a grievance must be filed. Since
December 5, 1989, the Respondent has refused to pro-
vide the Union with the information it requested.
II. CONTENTIONS OF THE PARTIES
The General Counsel and the Charging Party make
the following arguments in support of their contentions
that the Respondent violated Section 8(a)(5) and (1) of
the Act when it refused to provide the Union with re-
quested information concerning whether the Respond-
ent had complied with certain aspects of the 8(f) con-
tract, during its term, even though the request for in-
formation was made after the 8(f) contract expired. In
John Deklewa & Sons,1 the Board held that a contract
entered into pursuant to the provisions of Section 8(f)
of the Act is enforceable, during its term, by resort to
Section 8(a)(5) of the Act, in the absence of the decer-
tification of the union in a Board-conducted election.
The duty to bargain in good faith embodied in Section
8(a)(5) of the Act includes an employer’s duty to pro-
vide to a union, upon appropriate request, certain infor-
mation. This includes information from the employer
that is needed for the proper performance of the
union’s duty to police compliance with a collective-
bargaining agreement. NLRB v. Acme Industrial Co.,
385 U.S. 432 (1967). This principle is equally applica-
ble during the term of an 8(f) agreement. W. B. Skin-
ner, Inc., 283 NLRB 989 (1987).
Here, the Union’s efforts to verify compliance with
the contract occurred after the expiration of the con-
tract. Nevertheless, according to the General Counsel
and the Charging Party, the requested information per-
tains to a question involving the satisfaction of obliga-
tions accrued under the expired agreement. The mere
expiration of an 8(f) agreement, while extinguishing
any statutory bargaining obligations that look only to
the future, they argue, should not serve to limit the
Union’s ability, intelligently and effectively, to seek
redress for noncompliance with the contract during its
term. The General Counsel cites the Supreme Court’s
decision in Nolde Bros. v. Bakery Workers Local 358,
430 U.S. 243 (1977), as further support for his position
that unsatisfied obligations, vested during a contract’s
term, are not extinguished by the mere expiration of
the contract. Nolde compels arbitration of grievances
filed after the expiration of a contract where the griev-
ances concern rights accrued or vested while that con-
tract was still in effect.2 Likewise, the General Counsel
argues, because the requested information pertains to
obligations or duties embodied in the expired agree-
ment, the Respondent has a duty to provide the Union
with the information.
The Charging Party alleges that the Respondent’s
duty to provide the requested information should not
be extinguished with the expiration of the contract be-
cause certain of the Respondent’s obligations under the
contract, such as the monthly, fringe-benefit contribu-
tions, did not become due until 15 days after the con-
tract had already expired. Thus, all the documentation
that the Union needed to verify compliance with these
payments was not even available prior to the expiration
of the agreement.
The Respondent primarily argues that because the
agreement had expired over 4 months before the re-
quest for information was even made, the Respondent
had no obligation to respond to the request. More par-
ticularly, the Respondent contends that: (a) it has no
duty to provide to the Union information which is re-
quested in order to determine whether the employer
has complied with an expired collective-bargaining
agreement that is not being renegotiated; (b) it does
not have a duty to provide to the Union information
requested for the purpose of enforcing an expired con-
tract where the true reason for the request is to inves-
tigate a grievance; (c) until a proper request is made,
an employer has no duty to supply information; and
(d) it has no duty to provide the Union with informa-
tion for the purpose of negotiations, when no such pur-
pose was stated in the request. In regard to (b) and (d),
the Respondent further submits that an unrevealed rea-
son for requesting information cannot convert an in-
valid, revealed reason into a valid reason.
III. DISCUSSION
The question is whether, under Section 8(a)(5) and
(1) of the Act, the Respondent was obligated to furnish
the Union with information on payroll records, time-
sheets, and tax records of individuals who performed
work covered by the expired 8(f) agreement, when the
request for the information was made 4 months after
the expiration of the agreement. We find merit in the
General Counsel’s and Charging Party’s position that
the Respondent’s failure and refusal to supply the re-
quested information violated Section 8(a)(5) and (1) of
the Act.
An employer’s duty to provide information to a
union is premised on the union’s status as the exclu-
sive representative of the employer’s employees and
944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Cf. Crittenden Construction Co., 298 NLRB 747 (1990) (the Board found
that an 8(f) employer was obligated to supply relevant information about ex-
pired collective-bargaining agreements ‘‘regardless of the current state of the
parties’ bargaining relationship’’), and Missouri Portland Cement Co., 291
NLRB 1043 (1988). (The Board ordered the respondent to meet with the union
to process outstanding grievances even though the respondent had sold its
company and dissolved the unit by terminating all the employees. The changed
circumstances did not affect the grievances.)
4 See also Indiana & Michigan Electric Co., 284 NLRB 53 (1987).
5 Relying on Brazos Electric Cooperative, 241 NLRB 1016 (1979), enfd.
615 F.2d 1100 (5th Cir. 1980), the Respondent defends its failure to provide
the requested information on the basis that, inter alia, the Union gave no no-
tice that the information was being requested for the purpose of processing
or investigating grievances or for bargaining. In Brazos, a case, unlike here,
involving a union’s request for information regarding nonunit employees, the
Board held at 1018:
An employer is not obligated to honor a union’s request for informa-
tion when such request lacks both specificity and clarity and when the
employer could not have been aware of the intent and purpose of the
union’s request. However, where the circumstances surrounding the re-
quest are reasonably calculated to put the employer on notice of a rel-
evant purpose which the union has not specifically spelled out, the em-
ployer is obligated to divulge the requested information.
Here, the Union, in requesting information, stated a legitimate purpose—it
was attempting to police compliance with the expired contract. At the time of
the request, the Union did not know and could not state whether a grievance
would be filed. As noted, however, a union is entitled to information necessary
to decide whether to file a grievance. See NLRB v. Acme Industrial Co., supra.
Accordingly, the Union adequately stated to the Respondent a legitimate pur-
pose for its information request and we thus reject the Respondent’s defense
in this regard. See A-Plus Roofing, 295 NLRB 967 (1989), and W. B. Skinner,
Inc., supra.
Finally, we note that the Respondent, in replying to the Union’s request for
information, stated, inter alia, that the Union’s information request was for the
purpose of ‘‘harassment.’’ The Respondent on brief does not argue, nor would
the record support, that the Union sought the requested information in bad
faith.
the union’s resulting duty to perform as a bargaining
agent. Thus, information must be furnished to the
union for purposes of representing employees in nego-
tiations and also for policing the administration of an
agreement. Indeed, Section 8(d) defines ‘‘the obliga-
tion to bargain collectively as including the mutual ob-
ligation of the employer and the representative of the
employees to meet at reasonable times and confer in
good faith with respect to . . . any question arising
[under an agreement] . . . .’’ A union’s obligation to
police the agreement need not terminate at the expira-
tion of the agreement.
Here, the Union stated in its November 20, 1989 let-
ter that ‘‘[c]ertain questions have arisen as to whether
Audio Engineering paid wages and fringe benefits in
accordance with [the collective-bargaining agreement
effective from July 1, 1986, through June 30, 1989].’’
The fact that no grievance had been filed prior to the
request is irrelevant. In NLRB v. Acme Industrial Co.,
385 U.S. 432 (1967), the Supreme Court dealt with the
employer’s obligation to furnish information that al-
lows a union to decide whether to process a grievance.
The Court decided that the Board’s discovery-type
standard was appropriate. The fact that the contract
contained a grievance-arbitration clause is relevant,
however, because this clause certainly gives the union
the right to continue its contract compliance function
even after the expiration of the agreement.3 Nolde
Bros. v. Bakery Workers Local 358, supra, relied on by
the General Counsel, is also instructive in this regard.
There, the Supreme Court required arbitration of griev-
ances after the expiration of the contract because the
arbitration obligation created by the agreement sur-
vived its expiration in order to address situations
which arose under the contract.4
In the instant case, the contract does not provide for
a time limit within which a grievance must be filed.
Thus, if the Union is able to gather evidence estab-
lishing that the Respondent did not comply with the
expired contract, it may still file a grievance and seek
redress over the matter.5 Further, under the particular
facts presented here, we find that the request for infor-
mation filed 4 months after the expiration of the agree-
ment was filed within a reasonable time. Thus, we
hold that the mere expiration of the 8(f) agreement
does not toll the Union’s right to verify the Respond-
ent’s compliance with that agreement during its term.
Accordingly, the Respondent’s failure to provide the
requested information to the Union, pursuant to the
Union’s legitimate interest in policing the Respond-
ent’s compliance with the agreement during its term,
violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees of the Respondent performing
work within the work jurisdiction represented by the
Union constitute a unit appropriate for the purposes of
collective bargaining.
4. At all times material to the request for informa-
tion, the Union, by virtue of Section 8(f), was the lim-
ited exclusive representative of all the employees in
the unit.
5. By failing and refusing to furnish the Union with
requested information which is relevant and necessary
to the Union’s performance of its function as collec-
tive-bargaining representative, the Respondent has en-
gaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
6. The unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
945AUDIO ENGINEERING
6 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
Specifically, we shall order the Respondent to
promptly furnish the Union with the information re-
quested in its letter of November 20, 1989, and to post
the appropriate notice.
ORDER
The National Labor Relations Board orders that the
Respondent, Audio Engineering, Inc., Loves Park, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing or refusing to bargain collectively with
International Brotherhood of Electrical Workers Local
364, AFL–CIO as the exclusive collective-bargaining
representative of all employees of the Respondent per-
forming work within the work jurisdiction represented
by the Union, by failing or refusing to furnish the
Union with information which is relevant and nec-
essary to its function as the representative.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Promptly furnish the Union with the information
requested by its letter of November 20, 1989, per-
taining to the payroll records, timesheets, and tax
records reflecting work performed by individuals that
was covered by the 8(f) agreement effective July 1,
1986, through June 30, 1989.
(b) Post at its Loves Park, Illinois place of business
copies of the attached notice marked ‘‘Appendix.’’6
Copies of the notice, on forms provided by the Re-
gional Director for Region 33, 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 Re-
spondent has taken to comply.
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 or-
dered us to post an abide by this notice.
WE WILL NOT fail or refuse to bargain collectively
with the International Brotherhood of Electrical Work-
ers Local 364, AFL-CIO as the exclusive collective-
bargaining representative of all our employees per-
forming work within the work jurisdiction represented
by the International Brotherhood of Electrical Workers
Local 364, by failing and refusing to furnish said
Local 364 with information which is relevant and nec-
essary to its function as such representative.
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 promptly furnish Local 364 with the infor-
mation requested in its letter of November 20, 1989,
pertaining to wages, timesheets, and tax records.
AUDIO ENGINEERING, INC.