Rbh Dispersions, Inc.

National Labor Relations Board - Board Decisions

Nov 27, 1987

286 N.L.R.B. 1185 (N.L.R.B. 1987)

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."