Shamy Heating & Air Conditioning, Inc.

National Labor Relations Board - Board Decisions

May 30, 2000

331 N.L.R.B. 34 (N.L.R.B. 2000)

331 NLRB No. 34
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Shamy Heating & Air Conditioning, Inc. and Sheet
Metal Workers International Association, Local
Union No. 33 of Northern Ohio, AFL–CIO
Case 8–CA–31152
May 30, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
Pursuant to a charge filed on November 19, 1999, the
General Counsel of the National Labor Relations Board
issued a complaint on January 13, 2000, alleging that the
Respondent has violated Section 8(a)(5) and (1) of the
National Labor Relations Act by refusing the Union’s
request to bargain and furnish information following the
Union’s certification in Case 8–RC–15895. (Official
notice is taken of the “record” in the representation pro-
ceeding as defined in the Board’s Rules and Regulations,
Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB
343 (1982).) The Respondent filed an answer admitting
in part and denying in part the allegations in the com-
plaint.
On March 28, 2000, the General Counsel filed a Mo-
tion for Summary Judgment. On March 30, 2000, 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 Respondent filed 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 its answer the Respondent admits its refusal to bar-
gain and to furnish information that is alleged to be rele-
vant and necessary to the Union’s role as bargaining rep-
resentative, but attacks the validity of the certification on
the basis of its objections to the election in the represen-
tation proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).1

1 The Respondent argues that it is under no obligation to recognize and
bargain with the Union because 6 of the 11 bargaining unit employees
resigned their employment with the Respondent shortly after the elec-
tion and have not been replaced, thereby resulting in a radical fluctua-
tion in the size of the unit that destroyed the Union’s majority status.
We also find that there are no factual issues warranting
a hearing regarding the Union’s request for information.
The complaint alleges, and the Respondent admits, that
the Union requested the following information from the
Respondent on November 8, 1999:
1. A list of all current employees, including their cur-
rent wage rate, classification, and a list of any fringe
benefits they receive.
2. A copy of its current hospitalization plan, including
the cost of the plan for each employee, and a copy of
the summary plan description.
3. A summary plan description for its current 401–K
plan and a list of any past plans in which current em-
ployees still have investments along with the summary
plan description for each of those plans.
4. A copy of the summary plan description for the
Benco benefits plan, the Respondent’s prevailing wage,
hospitalization, and 401–K plan.
5. A copy of its current company handbook.
6. A copy of its current Apprenticeship Standards.
It is well established that the foregoing type of com-
pensation and employment information sought by the
Union is presumptively relevant for purposes of collec-
tive bargaining and must be furnished on request unless
its relevance is rebutted.2 The Respondent has not at-
tempted to rebut the relevance of the information re-
quested by the Union. Instead, in its answer, the Re-
spondent relies solely on its challenge to the Union’s
certification as the basis for its denial that it has a duty to
provide the Union with the requested information. We
therefore find that no material issues of fact exist with
regard to the Respondent’s refusal to furnish the informa-
tion sought by the Union.
Accordingly, we grant the Motion for Summary Judg-
ment and will order the Respondent to bargain with the
Union and to furnish the Union with the information it
requested.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Ohio corpo-
ration with an office and place of business in Toledo,
Ohio, has been engaged in the fabrication, installation,

This contention does not constitute a valid defense to a refusal-to-
bargain allegation where the Respondent is refusing to honor a Board
certification. It is well established that employee turnover is not the
kind of “unusual circumstance” within the meaning of the Supreme
Court’s decision in Brooks v. NLRB, 348 U.S. 96 (1954), that would
permit rebuttal of the Union’s majority status or warrant reexamination
of its certification. See Action Automotive, 284 NLRB 251 (1987),
enfd. 853 F.2d 433 (6th Cir. 1988), cert. denied 488 U.S. 1041 (1989);
Murphy Bros., Inc., 265 NLRB 1574 (1982); KI(USA) Corp., 310
NLRB 1233, fn.1 (1993).
2 See, e.g., U.S. Family Care San Bernardino, 315 NLRB 108
(1994); Trustees of Masonic Hall, 261 NLRB 436 (1982); and Verona
Dyestuff Division, 233 NLRB 109 (1977).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
service, and repair of heating, venting, and air condition-
ing systems. Annually, the Respondent, in conducting its
business operations described above, purchases and re-
ceives at its Toledo, Ohio facility, goods valued at more
than $50,000 directly from points outside the State of
Ohio. We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section
2(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 June 11, 1999, the Union
was certified on November 5, 1999, as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:
All full–time installation mechanics, installation me-
chanics apprentices, service mechanics, and service
mechanics apprentices engaged in the fabrication, in-
stallation, service, or repair of all heating, venting, and
air conditioning systems employed by the Employer at
or out of its 6226 American Road, Toledo, Ohio facil-
ity, the sole facility involved herein, but excluding all
office clerical, professional employees, sales persons,
dispatchers, guards, and supervisors as defined in the
Act, and all other employees.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since about November 8, 1999, the Union has re-
quested the Respondent to bargain and to furnish infor-
mation described above, and, since November 8, 1999,
the Respondent has 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 on and after November 8, 1999, to bargain
with the Union as the exclusive collective–bargaining
representative of employees in the appropriate unit and to
furnish the Union requested information, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 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. We also shall order the Respon-
dent to furnish the Union the information requested by it
on November 8, 1999.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification 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, Shamy Heating & Air Conditioning, Inc.,
Toledo, Ohio, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with Sheet Metal Workers In-
ternational Association, Local Union No. 33 of Northern
Ohio, AFL–CIO, as the exclusive bargaining representa-
tive of the employees in the bargaining unit, and refusing
to furnish the Union information that is relevant and nec-
essary to its role as the exclusive bargaining representa-
tive of the unit employees.
(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) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employment,
and if an understanding is reached, embody the under-
standing in a signed agreement:
All full–time installation mechanics, installation me-
chanics apprentices, service mechanics, and service
mechanics apprentices engaged in the fabrication, in-
stallation, service, or repair of all heating, venting, and
air conditioning systems employed by the Employer at
or out of its 6226 American Road, Toledo, Ohio facil-
ity, the sole facility involved herein, but excluding all
office clerical, professional employees, sales persons,
dispatchers, guards, and supervisors as defined in the
Act, and all other employees.
(b) Furnish the Union the information requested by it
on November 8, 1999.
(c) Within 14 days after service by the Region, post at
its facility in Toledo, Ohio, copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms
provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained

3 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

SHAMY HEATING & AIR CONDITIONING, INC. 3
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since November 8, 1999.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. May 30, 2000

Sarah M. Fox, Member

Wilma B. Liebman, Member

J. Robert Brame III, Member

(SEAL) 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 or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Sheet Metal
Workers International Association, Local Union No. 33
of Northern Ohio, AFL–CIO as the exclusive representa-
tive of the employees in the bargaining unit, and WE
WILL NOT refuse to furnish the Union information that is
relevant and necessary to its role as the exclusive bar-
gaining representative of the unit employees.
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 bar-
gaining unit:
All full–time installation mechanics, installation me-
chanics apprentices, service mechanics and service me-
chanics apprentices engaged in the fabrication, installa-
tion, service or repair of all heating, venting and air
conditioning systems employed by us at or out of our
6226 American Road, Toledo, Ohio facility, the sole
facility involved herein, but excluding all office cleri-
cal, professional employees, sales persons, dispatchers,
guards and supervisors as defined in the Act, and all
other employees.
WE WILL provide the Union with the information it re-
quested on November 8, 1999.
SHAMY HEATING & AIR CONDITIONING, INC.