Sea-Jet Trucking Corp.

National Labor Relations Board - Board Decisions

Aug 14, 1991

304 N.L.R.B. 67 (N.L.R.B. 1991)

67
304 NLRB No. 11
SEA-JET TRUCKING CORP.
1 The complaint alleges that the Union requested the following information
from the Respondents: (1) A current list of bargaining unit employees contain-
ing name and address and telephone numbers, age, seniority date, salary and
job classifications, job description, sex, marital status, social security number,
regular work hours, and number of employees on layoff; (2) different labor
grades and steps of each grade, number of people in each grade/step and
where merit increases are involved, the number of people in each labor grade
with the corresponding incremental steps; (3) formula or process used in deter-
mining progress through each labor grade and its corresponding steps, how
promoted into next step, etc. (4) per employee promotional record, such as
date of hire, starting salary, incremental and/or merit raises, annual reviews,
any form of monetary acceleration, present salary, promotions, transfers, de-
motions-lateral moves; (5) number of single employees, number of singles
with families, number of married and number of married with families, any
dependent riders other than children, i.e. mother, father, etc., (not taken from
W-2 form); (6) job bidding and promotion system to include employee re-
quests for jobs, acceptance/denial and respective dates; (7) departments and
employees in each department; (8) certain specified insurance information re-
garding active employees; and (9) certain specified pension information.
2 See generally Cowles Communications, 172 NLRB 1909 (1968); Westing-
house Electric Corp., 239 NLRB 106 (1978), affd. in pertinent part 648 F.2d
18 (D.C. Cir. 1980). To the extent prior Board decisions hold to the contrary,
they are overruled.
Member Cracraft would adhere to Board precedent holding that employee
social security numbers are presumptively relevant. See, e.g., American Com-
mercial Lines, 291 NLRB 1066, 1083–1084 (1988); Bickerstaff Clay Products
Co., 286 NLRB 295, 297, 300 (1987), enf. denied on other grounds 871 F.2d
980 (11th Cir. 1989); Yet Wah Restaurant, 251 NLRB 47, 52 (1980). Accord-
ingly, she would order the Respondent to provide the Union with this informa-
tion.
3 See, e.g., Trustees of Masonic Hall, 261 NLRB 436 (1982); Verona Dye-
stuff Division, 233 NLRB 109 (1977); Valley Programs, Inc., 300 NLRB 423
(1990), enfd. per curiam 930 F.2d 907 (1st Cir. 1991). As the Respondent is
Continued
Sea-Jet Trucking Corporation, A.P.A. Warehouses,
Inc., Affiliated Terminals, Inc., Sea-Jet Indus-
tries, Inc., and Sea-Jet Trucking & A.P.A.
Warehouses, Inc., a Single Employer and Inter-
national Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica, AFL–CIO. Case 29–CA–14680
August 14, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On April 30, 1990, the General Counsel of the Na-
tional Labor Relations Board issued a complaint alleg-
ing that the Respondents, as a single employer, vio-
lated Section 8(a)(5) and (1) of the National Labor Re-
lations Act by refusing the Union’s request to bargain
and to supply relevant and necessary information fol-
lowing the Union’s certification in Cases 29–RC–6841
and 29–RC–6844. (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); Frontier Hotel, 265 NLRB 343 (1982).)
The Respondents filed an answer admitting in part and
denying in part the allegations in the complaint and
submitting certain affirmative defenses.
On September 4, 1990, the General Counsel filed a
Motion for Summary Judgment. On September 6,
1990, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondents did
not file a response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In their answer the Respondents admit that the
Union was certified in the representation proceeding
and that the Union subsequently requested the Re-
spondents to bargain and to provide information, but
deny that they constitute a single employer, that they
have refused to bargain with or provide the requested
information to the Union, and that the requested infor-
mation is relevant and necessary to the Union’s per-
formance as exclusive bargaining representative. In ad-
dition, the Respondents submit as an affirmative de-
fense that another union, Local 348, Warehouse Pro-
duction Sales and Service Employees, has also filed an
8(a)(5) charge against the Respondents alleging a re-
fusal to bargain.
All representation issues raised by the Respondents,
including the single-employer issue, were or could
have been litigated in the prior representation proceed-
ing. The Respondents do not offer to adduce at a hear-
ing any newly discovered and previously unavailable
evidence, nor do they allege any special circumstances
that would require the Board to reexamine the decision
made in the representation proceeding. We therefore
find that the Respondents have not raised any represen-
tation issue that is properly litigable in this unfair labor
practice proceeding. See Pittsburgh Plate Glass Co. v.
NLRB, 313 U.S. 146, 162 (1941).
Nor do we find that any of the other issues raised
by the Respondents warrant denial of the Motion for
Summary Judgment. Thus, although the Respondents
in their answer deny that they have refused to bargain
or provide the requested information to the Union,1
they have not challenged or disputed the Union Sub-
regional Director’s affidavit to the contrary in response
to the Notice to Show Cause. Although the Respond-
ents in their answer also deny that the requested infor-
mation is relevant and necessary, we do not find this
denial sufficient to withhold summary judgment. We
agree that one of the items requested by the Union—
employee social security numbers—is not presump-
tively relevant and thus need not be furnished absent
a showing of the numbers’ potential or probable rel-
evance. Such information does not have a sufficient di-
rect relationship on its face either to employees’ terms
and conditions of employment or to the administration
and enforcement of the parties’ collective-bargaining
agreement.2 However, this does not excuse the Re-
spondents’ failure to supply any of the other informa-
tion requested by the Union—all of which clearly is
presumptively relevant.3 Finally, uncontroverted evi-
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
therefore clearly obligated to provide this other information to the Union, we
will order it to do so. However, inasmuch as we find that the social security
numbers requested by the Union are not presumptively relevant, we will not
at this time order the Respondent to provide the numbers to the Union, and
will instead remand this aspect of the case.
dence submitted by the General Counsel indicates that
Local 348’s 8(a)(5) charge has been withdrawn pursu-
ant to a non-Board settlement, and that the settlement
does not in any way conflict with the Union’s rights
and obligations as the exclusive bargaining representa-
tive of the certified unit. Accordingly, the Motion for
Summary Judgment is granted.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondents are Delaware corporations with
their principal office and place of business located at
140 43rd Street, Brooklyn, New York. Respondent
Sea-Jet Trucking Corporation is engaged in interstate
and intrastate transportation of freight and commod-
ities. Respondent A.P.A. Warehouses, Inc. is engaged
in warehouse and storage operations. Respondent Af-
filiated Terminals Incorporated is engaged in providing
consolidation and distribution of freight and commod-
ities. Respondent Sea-Jet Industries, Incorporated is en-
gaged as purchasing agent in providing financial serv-
ices, including the purchase of materials, supplies, and
equipment, for Respondents A.P.A. Warehouses, Inc.
and Sea-Jet Trucking Corporation. Respondent Sea-Jet
Trucking & A.P.A. Warehouses, Inc. is engaged as
purchasing agent in providing financial services, in-
cluding the purchase of materials, supplies, and equip-
ment, for Respondents A.P.A. Warehouses, Inc., Sea-
Jet Trucking Corporation, and Affiliated Terminals, In-
corporated. Together, the Respondent companies con-
stitute a single integrated business enterprise and a sin-
gle employer within the meaning of the Act.
The Respondents deny the complaint allegations that
each of them individually derived gross revenues in
excess of $50,000 from the transportation of freight
and commodities directly to points outside the State of
New York, and/or that they purchased and received
goods and materials in excess of $50,000 directly from
points outside the State of New York, during the year
preceding issuance of the complaint. However, the Re-
gional Director in his Decision and Direction of Elec-
tion in the representation case specifically found that
two of the Respondent companies (APA Warehouse,
Inc. and Sea-Jet Trucking Corporation) annually de-
rived over $50,000 in gross revenues from their inter-
state operations, and concluded that the Board there-
fore had jurisdiction over all the companies as a single
employer. The Respondents did not seek review of this
finding by the Regional Director. Moreover, the Re-
spondents in their answer to the instant unfair labor
practice complaint admit to the ultimate allegation that
they, both individually and cumulatively, are engaged
in commerce within the meaning of the Act.
Accordingly, we find that the Respondents are an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the 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 March 28, 1988, the
Union was certified on December 19, 1989, as the col-
lective-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time warehouse em-
ployees employed by Sea-Jet Trucking Corpora-
tion, A.P.A. Warehouse, Inc., Affiliated Termi-
nals, Incorporated, Sea-Jet Industries, Incor-
porated, and Sea-Jet Trucking & A.P.A. Ware-
house, Inc., at its 140 43rd Street, Brooklyn, New
York location, excluding all office clerical em-
ployees, trailer drivers, truckdrivers, drivers’ help-
ers, building maintenance employees, truck main-
tenance employees, professional employees and
supervisors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since January 17, 1990, the Union has requested the
Respondents to bargain and to furnish information,
and, since on or about the same day, the Respondents
have refused. We find that this refusal constitutes an
unlawful refusal to bargain in violation of Section
8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing since on or about January 17, 1990, to
bargain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit and to furnish the Union requested information,
the Respondents have engaged 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 Respondents have violated
Section 8(a)(5) and (1) of the Act, we shall order them
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. We also shall
69SEA-JET TRUCKING CORP.
4 As noted earlier, however, we shall not order the Respondents to provide
the employees’ social security numbers to the Union. Nor will we grant the
General Counsel’s request to include a visitatorial clause in the Order. In
Cherokee Marine Terminal, 287 NLRB 1080 (1988), the Board held that it
would grant visitatorial clauses ‘‘on a case by case basis, when the equities
demonstrate a likelihood that a respondent will fail to cooperate or otherwise
attempt to evade compliance.’’ Here, as neither the complaint nor the Motion
for Summary Judgment alleges any facts in this regard, we find such a clause
unwarranted.
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 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.’’
order the Respondents to furnish the requested infor-
mation to the Union.4
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by law, we shall construe the initial period of
the certification as beginning the date the Respondents
begin 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
Respondents, Sea-Jet Trucking Corporation, A.P.A.
Warehouses, Inc., Affiliated Terminals, Inc., Sea-Jet
Industries, Inc., and Sea-Jet Trucking & A.P.A. Ware-
houses, Inc., a single employer, Brooklyn, New York,
their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, AFL–CIO as the exclusive
bargaining representative of the employees in the unit,
and refusing to furnish the Union information that is
relevant and necessary to its role as the exclusive bar-
gaining representative of the unit employees.
(b) In any like or related manner interfering with,
restraining, 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) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time warehouse em-
ployees employed by Sea-Jet Trucking Corpora-
tion, A.P.A. Warehouse, Inc., Affiliated Termi-
nals, Incorporated, Sea-Jet Industries, Incor-
porated, and Sea-Jet Trucking & A.P.A. Ware-
house, Inc., at its 140 43rd Street, Brooklyn, New
York location, excluding all office clerical em-
ployees, trailer drivers, truckdrivers, drivers’ help-
ers, building maintenance employees, truck main-
tenance employees, professional employees and
supervisors as defined in the Act.
(b) On request, furnish the Union the information it
requested on January 17, 1990, with the exception of
the employees’ social security numbers.
(c) Post at its facility in Brooklyn, New York, cop-
ies of the attached notice marked ‘‘Appendix.’’5 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by the Re-
spondents’ authorized representative, shall be posted
by the Respondents 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 Respondents to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) 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 and abide by this notice.
WE WILL NOT refuse to bargain with International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL–CIO as the ex-
clusive representative of the employees in the bargain-
ing unit, and WE WILL NOT refuse to furnish the Union
information that is relevant and necessary to its role as
the exclusive bargaining representative of the unit em-
ployees.
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, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All full-time and regular part-time warehouse em-
ployees employed by Sea-Jet Trucking Corpora-
tion, A.P.A. Warehouse, Inc., Affiliated Termi-
nals, Incorporated, Sea-Jet Industries, Incor-
porated, and Sea-Jet Trucking & A.P.A. Ware-
house, Inc., at its 140 43rd Street, Brooklyn, New
York location, excluding all office clerical em-
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployees, trailer drivers, truckdrivers, drivers’ help-
ers, building maintenance employees, truck main-
tenance employees, professional employees and
supervisors as defined in the Act.
WE WILL, on request, provide the Union with the in-
formation it requested on January 17, 1990, except for
the employees’ social security numbers.
SEA-JET TRUCKING CORPORATION,
A.P.A. WAREHOUSES, INC., AFFILIATED
TERMINALS, INC., SEA-JET INDUSTRIES,
INC., AND SEA-JET TRUCKING & A.P.A.
WAREHOUSES, INC., A SINGLE EM-
PLOYER