Streicher Mobile Fueling

National Labor Relations Board - Board Decisions

Oct 31, 2003

340 N.L.R.B. 994 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 994
Streicher Mobile Fueling, Inc. and International
Brotherhood of Teamsters, Local 385, AFL–
CIO. Case 12–CA–23237
October 31, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND WALSH
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge and an amended charge filed
on July 28 and August 8, 2003,1 respectively, the General
Counsel issued a complaint on August 12, 2003, alleging
that the Respondent has violated Section 8(a)(5) and (1)
of the Act by refusing the Union’s request to bargain and
to furnish necessary and relevant information following
the Union’s certification in Case 12–RC–8859. (Official
notice is taken of the “record” in the representation pro-
ceeding as defined in the Board’s Rules and Regulations,
Sections 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 complaint, and asserting affirmative defenses.
On September 15, 2003, the General Counsel filed a
Motion for Summary Judgment. On September 23,
2003, the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why the
motion should not be granted. On October 7, 2003, 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 and response to the Notice to Show
Cause, the Respondent admits its refusal to bargain and
to furnish information, but contests the validity of the
certification on the basis of its objections to conduct al-
leged to have affected the results of the election in the
representation proceeding. In addition, the Respondent
denies that the information requested by the Union is

1 The Respondent in its answer to the complaint states that it is with-
out sufficient knowledge or information to form a belief as to whether
the amended charge was filed and served on Respondent by mail on
August 8 and 11, 2003, respectively. However, copies of the amended
charge and affidavit of service are attached as Exhs. N and P to the
General Counsel’s motion and the Respondent has not contested the
authenticity of these documents in its response to the Notice to Show
Cause. Accordingly, we find that the Respondent has not raised any
issue regarding filing and service of the amended charge warranting a
hearing. See, e.g., Shore Club Condominium Assn. Inc., 340 NLRB
700 fn. 1 (2003); Corrections Corp. of America, 330 NLRB 663
(2000), enfd. 234 F.3d 1321 (D.C. Cir. 2000).

necessary and relevant, asserting that the Union’s infor-
mation request is overbroad and that some of the re-
quested information is confidential.
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, and we do not find any special
circumstances that would require the Board to reexamine
the decision made in the representation proceeding.2 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).
We also find that there are no factual issues warrant-
ing a hearing with respect to the Union’s request for in-
formation. The complaint alleges, and the Respondent
admits, that by letter dated July 18, 2003, the Union re-
quested that the Respondent furnish the Union with the
following information for unit employees:

(1) A list of current employees including their
names, dates of hire, rates of pay, job classifications,
2 In the representation proceeding, one of the Respondent’s objec-
tions was that the Union distributed a marked sample ballot. The hear-
ing officer overruled this objection, finding that the language on the
Board’s Notice of Election disclaiming any involvement by the Board
in altering or defacing the sample ballot was sufficient to reassure em-
ployees of the Board’s neutrality. In its response to the Notice to Show
Cause, the Respondent contends that issuance of the Board’s decision
in International Business Machines Corp., 339 NLRB 966 (2003),
creates special circumstances warranting reexamination of the decision
in the representation proceeding. We reject the Respondent’s conten-
tion, for the following reasons.
The Respondent’s argument is based on the premise that most of the
employees in the voting unit work offsite and therefore may not have
been exposed to the Notice of Election, which was posted on company
bulletin boards (but not electronically). The adequacy of the posting of
the Notice of Election could have been litigated in the prior representa-
tion proceeding. The Respondent does not contend that it has newly
discovered and previously unavailable evidence concerning the matter.
Indeed, it was always free to post the notice electronically on its own
initiative, or to alert employees electronically to the bulletin board
posting. The Board’s decision in International Business Machines has
no bearing here. In that case, the Board simply rejected, on procedural
grounds, the charging party’s request, in the compliance proceeding,
that the respondent employer be required to post a remedial notice
electronically.
Member Walsh adheres to his position in International Business
Machines that electronic posting of the Board’s remedial notice is
required where notices to employees are customarily posted in that
manner and posting by paper bulletin board would be inadequate.
However, he agrees that the Board’s decision in that case does not
constitute a special circumstance requiring the Board to reexamine its
decision in the underlying representation proceeding here.
Member Liebman, who was not on the panel that decided Interna-
tional Business Machines, agrees that the decision there does not con-
stitute a special circumstance requiring the Board to reexamine its
decision in the underlying representation proceeding here.
340 NLRB No. 116
STREICHER MOBILE FUELING 995
last known address, phone number, dates of comple-
tion of any probationary period, and any records of
discipline;
(2) A copy of all current company personnel
policies, practices or procedures;
(3) A statement and description of all company
personnel policies, practices or procedures other
than those stated in number 2 above;
(4) A copy of all company fringe benefit plans
(including the plan document and summary plan de-
scription) including pension, profit sharing, sever-
ance, stock incentive, vacation, health and welfare,
apprenticeship, training, legal services, child care, or
any other plans which relate to the employees;
(5) Copies of all current job descriptions;
(6) Copies of any company wage or salary plans;
(7) Copies of all disciplinary notices, warnings or
records of disciplinary action for the last year;
(8) A statement and description of all wage and
salary plans which are not provided under number 6
above.

In its answer, the Respondent relies on its challenge to
the Union’s certification as a defense to its refusal to
provide the Union with the requested information. The
Respondent also contends that the employees’ telephone
numbers and the disciplinary records of former employ-
ees are confidential, and that the Union’s information
request is overbroad. However, it is well established that
the foregoing type of employment information sought by
the Union, including employees’ telephone numbers and
disciplinary records, is presumptively relevant for pur-
poses of collective bargaining and must be furnished on
request.3 Further, although the Union’s information re-
quest is not specifically limited to bargaining unit em-
ployees and could therefore be construed as requesting
information pertaining to nonunit as well as unit employ-
ees, this would not justify the Respondent’s blanket re-
fusal to comply with the Union’s request. It is well es-
tablished that an employer may not simply refuse to
comply with an ambiguous or overbroad information
request, but must request clarification or comply with the
request to the extent it encompasses necessary and rele-
vant information.4
We therefore find that the Respondent unlawfully re-
fused to furnish the information sought by the Union.
See, e.g., Verona Dyestuff Division, 233 NLRB 109, 110

3 See, e.g., Super K-Mart, 322 NLRB 583 (1996) (telephone num-
bers and disciplinary records); Maple View Manor, 320 NLRB 1149
(1996), enfd. 107 F.3d 923 (D.C. Cir. 1997) (telephone numbers).
4 U.S. Family Care San Bernardino, 315 NLRB 108 (1994); Holiday
Inn Coliseum, 303 NLRB 367 fn. 6 (1991).
(1977). However, in granting summary judgment, we
shall only require the Respondent to provide the re-
quested information to the extent it pertains to current or
former unit employees.5 See Cheboygan Health Care
Center, 338 NLRB 802, 803 fn. 2 (2003); Freyco Truck-
ing, Inc., 338 NLRB 774, 775 fn. 1 (2003).
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 to the extent the information pertains to current
or former unit employees.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Florida corpo-
ration, has had an office and principal place of business
located in Orlando, Florida, where it is engaged in the
business of providing onsite fueling services. During the
past 12 months, the Respondent, in the course and con-
duct of its business operations described above, pur-
chased and received at or near its Orlando, Florida facil-
ity goods valued in excess of $50,000 directly from
points located outside the State of Florida. We find that
the Respondent is an employer engaged 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 November 26, 2002, the
Union was certified on May 30, 2003, as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time drivers employed by
Streicher Mobile Fueling, Inc., out of its Orlando, Flor-
ida location, excluding all other employees, guards and
supervisors as defined in the Act.
The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
Since about July 18, 2003, the Union, by letter, has re-
quested the Respondent to bargain and to furnish infor-
mation. The information requested by the Union is nec-
essary for, and relevant to the Union’s performance of its
duties as exclusive collective-bargaining representative
of the unit employees. Since on or about July 18, 2003,
5 This is consistent with the complaint, which alleges that the Re-
spondent’s failure to furnish information “for the Unit” violated the
Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 996
the Respondent has failed and refused to bargain with the
Union and to furnish the requested information. We find
that the Respondent has thereby violated Section 8(a)(5)
and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing on and after July 18, 2003, to
bargain with the Union as the exclusive collective-
bargaining representative of employees in the appropriate
unit and to furnish the Union with requested necessary
and relevant information, the Respondent has 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 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 shall also order the Respon-
dent to furnish the Union with the information it re-
quested by letter dated July 18, 2003, to the extent the
information pertains to current or former unit employees.
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).6
ORDER
The National Labor Relations Board orders that the
Respondent, Streicher Mobile Fueling, Inc., Orlando,
Florida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Brotherhood
of Teamsters, Local 385, AFL–CIO, as the exclusive
bargaining representative of the employees in the bar-
gaining unit.

6 In accordance with the General Counsel’s unopposed request, and
as the record in the underlying representation case indicates that some
of the unit employees did not speak English, we shall order that the
Notice to Employees be posted in both English and Spanish. In this
case, unlike Shore Club Case Condominium, 340 NLRB No. 82 (2003),
the record in the underlying representation case indicates that some of
the unit employees speak Spanish, but not English, and that the sample
ballot circulated by the Union (which was the subject of an objection)
was printed in both Spanish and English.
(b) Refusing to furnish the Union with information that
is relevant and necessary to the performance of its duties
as the exclusive bargaining representative of the unit
employees.
(c) 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 exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment, and if
an understanding is reached, embody the understanding
in a signed agreement:
All full-time and regular part-time drivers employed by
Streicher Mobile Fueling, Inc., out of its Orlando, Flor-
ida location, excluding all other employees, guards and
supervisors as defined in the Act.
(b) Furnish the Union with the information that it re-
quested in its letter dated July 18, 2003, to the extent the
information pertains to current or former unit employees.
(c) Within 14 days after service by the Region, post at
its facility in Orlando, Florida, copies of the attached
notice marked “Appendix.”7 Copies of the notice, on
forms provided by the Regional Director for Region 12
after being signed by the Respondent’s authorized repre-
sentative, shall be translated into Spanish, and both Span-
ish and English notices shall be posted by the Respon-
dent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices 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 Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since July 18, 2003.
(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.
7 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.”

STREICHER MOBILE FUELING 997
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your benefit
and protection
Choose not to engage in any of these protected ac-
tivities.

WE WILL NOT refuse to bargain with International
Brotherhood of Teamsters, Local 385, AFL–CIO, as the
exclusive representative of the employees in the bargain-
ing unit.
WE WILL NOT refuse to furnish the Union informa-
tion that is relevant and necessary to its role as the exclu-
sive bargaining 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 fol-
lowing bargaining unit:
All full-time and regular part-time drivers employed by
us, out of our Orlando, Florida location, excluding all
other employees, guards and supervisors as defined in
the Act.
WE WILL furnish the Union with the information that
it requested in its letter dated July 18, 2003, to the extent
the information pertains to current or former unit em-
ployees.

STREICHER MOBILE FUELING, INC.