Electrical Workers IBEW Local 292 (Sound Employers Assn.)

National Labor Relations Board - Board Decisions

Apr 28, 1995

317 N.L.R.B. 275 (N.L.R.B. 1995)

275
317 NLRB No. 43
ELECTRICAL WORKERS IBEW LOCAL 292 (SOUND EMPLOYERS ASSN.)
1 On October 17, 1994, the General Counsel filed a supplement to
Motion for Summary Judgment, with an exhibit attached.
International Brotherhood of Electrical Workers,
AFL–CIO, Local Union #292 and Sound, Pub-
lic Address and Communication Employers As-
sociation
International Brotherhood of Electrical Workers,
AFL–CIO, Local Union #110 and Sound, Pub-
lic Address and Communication Employers As-
sociation. Cases 18–CB–3461 and 18–CB–3462
April 28, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
Upon charges filed by Sound, Public Address and
Communication Employers Association (the Associa-
tion), on July 15, 1994, the General Counsel of the
National Labor Relations Board, by the Regional Di-
rector for Region 18, issued an order consolidating
cases, consolidated complaint, and notice of hearing on
August 25, 1994, against the International Brotherhood
of Electrical Workers, Local Union #292 (Local 292),
and Local Union #110 (Local 110), the Respondents,
alleging that they had engaged in and were engaging
in unfair labor practices affecting commerce within the
meaning of Section 8(b)(3), Section 8(d), and Section
2(6) and (7) of the National Labor Relations Act. The
Respondents filed an answer to the consolidated com-
plaint admitting in part, and denying in part, the alle-
gations in the consolidated complaint, raised affirma-
tive defenses, and requested that the consolidated com-
plaint be dismissed.
Thereafter, on October 12, 1994, the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment and brief in support thereof, with ex-
hibits attached.1 On October 17, 1994, the Board
issued an order transferring proceeding to the Board
and Notice to Show Cause why the General Counsel’s
Motion for Summary Judgment should not be granted.
On October 31, 1994, the Respondents filed a memo-
randum in opposition to Motion for Summary Judg-
ment.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record in this proceeding, the Board
makes the following
Ruling on the Motion for Summary Judgment
The consolidated complaint alleges that since about
October 1, 1993, the Association requested that the Re-
spondents furnish to the Association copies of collec-
tive-bargaining agreements between the Respondents
and employers engaged in the same industry but not
members of the Association. The complaint alleges
that the information requested is necessary for and rel-
evant to the Association’s ability to police its collec-
tive-bargaining agreements with the Respondents. Fi-
nally, the consolidated complaint alleges that since
about March 31, 1994, the Respondents have failed
and refused to furnish to the Association the informa-
tion requested, and that by such conduct, the Respond-
ents have failed and refused to bargain collectively and
in good faith with the Association within the meaning
of Section 8(d) of the Act and in violation of Section
8(b)(3) of the Act.
In its answer, the Respondents admit that the Asso-
ciation requested that they furnish copies of collective-
bargaining agreements between the Respondents and
employers engaged in the same industry but not mem-
bers of the Association, but the Respondents deny that
the information requested by the Association is nec-
essary for and relevant to the Association’s ability to
police its collective-bargaining agreements with the
Respondents and that they refused to furnish the re-
quested information. In this regard, the Respondents
state that their obligation to provide the information in
question is set forth in the collective-bargaining agree-
ments; that the Association did not request the infor-
mation for the purpose of policing its collective-bar-
gaining agreements with the Respondents, but rather,
for the purpose of gaining a competitive advantage
over other employers engaged in the same industry but
not members of the Association; and that they offered
to make the requested information available to the As-
sociation through a third party for review provided that
the parties could agree on certain production safe-
guards to prevent abuse or misuse of the requested in-
formation. Further, as an affirmative defense, the Re-
spondents assert that the parties had agreed to arbitrate
their dispute and that they remain willing to proceed
to arbitration of this dispute.
First, we find that the requested information is nec-
essary for and relevant to the Association’s ability to
police its collective-bargaining agreements with the
Respondents, as alleged in the complaint. The collec-
tive-bargaining agreements between the Association
and the Respondents contain the following ‘‘most fa-
vored nations’’ provision:
SECTION 1.12. EQUAL CONDITIONS—The Union
agrees that if, during the life of this Agreement,
the Union grants to any employers in the sound,
public address, and communications industry, any
better terms or conditions than those set forth in
this Agreement, such better terms or conditions
shall be made available to the Employers under
this Agreement and the Union shall immediately
notify the S.P.A.C.E. of such concessions.
The Board has consistently held that such a ‘‘most
favored nations’’ clause establishes both the necessity
and relevancy of such information as requested by the
276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Our dissenting colleague acknowledges that the Respondents
have a contractual obligation to disclose any better terms and condi-
tions that have been granted to non-Association employers. Such dis-
closure is relevant to ascertaining whether the Respondents must
grant better terms and conditions to the Association. However, our
colleague nonetheless asserts that there is no basis for the informa-
tion requested here. In response, we note that the requested informa-
tion is designed to shed light on the very issue of whether there has
been compliance with the contractual promise to grant better terms
and conditions to the Association if non-Association employers have
received such terms and conditions.
Association and that a union’s refusal to furnish such
information violates Section 8(b)(3) of the Act. See
Teamsters Local 272 (Metropolitan Garage), 308
NLRB 1132, 1133–1134 (1992); Service Employees
Local 144 (Jamaica Hospital), 297 NLRB 1001, 1002–
1003 (1990); Electrical Workers IBEW Local 1186
(Pacific Electrical), 264 NLRB 712, 721–722 (1982);
and Hotel & Restaurant Employees Local 355 (Doral
Beach Hotel), 245 NLRB 774, 776–777 (1979).2
The Respondents’ contention that the Association’s
true purpose in seeking the requested information was
to gain a competitive advantage over other employers
who are not members of the Association does not ne-
gate the Respondents’ duty to furnish this information.
It is well settled that where a party requests informa-
tion that is relevant to that party’s collective-bargain-
ing needs, it is irrelevant that there may also be other
reasons for the request or that the information may be
put to other uses. Associated General Contractors of
California, 242 NLRB 891, 894 (1979); Utica Ob-
server-Dispatch, Inc. v. NLRB, 229 F.2d 575, 577 (2d
Cir. 1956).
We also find without merit the Respondents’ conten-
tion that we should defer this dispute to arbitration. It
is well settled that issues raised by a party’s refusal to
furnish relevant and necessary information are inappro-
priate for deferral to the arbitration process. Clinchfield
Coal Co., 275 NLRB 1384 (1985); General Dynamics
Corp., 268 NLRB 1432 fn. 2 (1984). The Respond-
ents’ alternative contention that the requested informa-
tion be submitted to a third party for independent re-
view in lieu of its submission to the Association is
equally without merit. Having established that the re-
quested information is necessary for and relevant to its
ability to police its collective-bargaining agreements
with the Respondents, the Association is entitled to the
information, and the Respondents are obligated to pro-
vide it directly to the Association. See Service Employ-
ees Local 144, supra, 297 NLRB at 1003; and Associ-
ated General Contractors of California, supra, 242
NLRB at 893.
Accordingly, for the above reasons, we find that the
Respondents’ refusal to furnish the requested informa-
tion to the Association violated Section 8(b)(3) of the
Act.
On the basis of the entire record, the Board makes
the following
FINDINGS OF FACT
I. THE BUSINESS OF THE ASSOCIATION
The Association, an unincorporated association with
an office and place of business in St. Paul, Minnesota,
is a multiemployer bargaining association whose mem-
bers are contractors engaged in construction, installa-
tion, and maintenance of low-voltage electrical sys-
tems, such as alarms and closed-circuit television. Dur-
ing the 12 months preceding issuance of the consoli-
dated complaint, the Association’s members, in con-
ducting their operations, derived gross revenues in ex-
cess of $1 million and have sold and shipped from
their Minnesota facilities goods and services valued in
excess of $50,000 directly to points outside the State
of Minnesota. We find that the Association is an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that the Re-
spondents are labor organizations within the meaning
of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Collective-Bargaining Relationship
1. The units
The following employees of the Association’s mem-
bers constitute appropriate units for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
(a) All technicians and installers employed by
members of the Association and working within
the geographical jurisdiction of Respondent Local
292; excluding office clericals, guards and super-
visors as defined in the Act.
(b) All technicians and installers employed by
members of the Association and working within
the geographical jurisdiction of Respondent Local
110; excluding office clericals, guards and super-
visors as defined in the Act.
2. The collective-bargaining agreements
Since at least March 1, 1991, Respondents Local
292 and Local 110 have been the exclusive collective-
bargaining representative of their respective unit, and
have been recognized as such representative by the As-
sociation. This recognition has been embodied in suc-
cessive collective-bargaining agreements, the most re-
cent of which is effective from March 1, 1994, to Feb-
ruary 28, 1997.
277ELECTRICAL WORKERS IBEW LOCAL 292 (SOUND EMPLOYERS ASSN.)
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
National 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.’’
B. The Request for Information and the
Respondents’ Refusal
On or about October 1, 1993, the Association re-
quested that the Respondents furnish the Association
with copies of collective-bargaining agreements be-
tween the Respondents and employers engaged in the
same industry but not members of the Association.
Since about March 31, 1994, the Respondents, by their
agents Greg Shafranski, Robert Elizondo, and others
have failed and refused furnish to the Association the
information requested.
For the reason stated above, we find that the Re-
spondents have, since March 31, 1994, and at all times
thereafter, refused to furnish to the Association copies
of collective-bargaining agreements between the Re-
spondents and employers engaged in the same industry
but not members of the Association. By that refusal,
the Respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section
8(b)(3) and Section 8(d) of the Act.
IV. THE REMEDY
Having found that the Respondents have engaged in
and are engaging in unfair labor practices within the
meaning of Section 8(b)(3) and Section 8(d) of the
Act, we shall order that it cease and desist therefrom.
We shall further require the Respondents, on request,
to provide the Association with copies of collective-
bargaining agreements they have with other employers
who are not members of the Association.
CONCLUSIONS OF LAW
1. Sound, Public Address and Communications Em-
ployers Association is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. International Brotherhood of Electrical Workers,
AFL–CIO, Local Union #292 and International Broth-
erhood of Electrical Workers, AFL–CIO, Local Union
#110 are labor organizations within the meaning of
Section 2(5) of the Act.
3. All technicians and installers employed by mem-
bers of the Association and working within the geo-
graphical jurisdiction of Respondents Local Union
#292 and Local Union #110 constitute appropriate
units for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. At all times material, the above-named labor or-
ganizations have been and are now the exclusive rep-
resentatives of all employees in the aforementioned ap-
propriate units for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing to bargaining collectively with the
Association and by refusing on or about March 31,
1994, and at all times thereafter to furnish copies of
collective-bargaining agreements with other employers
who are not members of the Association, the Respond-
ents have engaged in and are engaging in unfair labor
practices within the meaning of Section 8(b)(3) and
Section 8(d) of the Act.
6. The aforementioned unfair labor practices are un-
fair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
The National Labor Relations Board orders that the
Respondents, International Brotherhood of Electrical
Workers, AFL–CIO, Local Union #292, Minneapolis,
Minnesota, and International Brotherhood of Electrical
Workers, AFL–CIO, Local Union #110, St. Paul, Min-
nesota, their officers, agents, and representatives, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Sound,
Public Address and Communication Employers Asso-
ciation by refusing to furnish to the Association copies
of collective-bargaining agreements with other employ-
ers who are not members of the Association.
(b) In any like or related manner acting in deroga-
tion of its statutory duty to bargain with the Associa-
tion on behalf of its members.
2. Take the following affirmative action that the
Board finds will effectuate the policies of the Act.
(a) On request, furnish to Sound, Public Address
and Communication Employers Association copies of
collective-bargaining agreements between the Respond-
ents and other employers in the industry who are not
members of the Association.
(b) Post at their facilities in Minneapolis and St.
Paul, Minnesota, copies of the attached notice marked
‘‘Appendices A and B.’’3 Copies of the notice, on
forms provided by the Regional Director for Region
18, after being signed by the Respondents’ authorized
representatives, shall be posted by the Respondents im-
mediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondents to en-
sure that the notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply.
MEMBER BROWNING, dissenting.
Contrary to my colleagues, I find that the complaint,
the answer, and the parties’ submissions to the Board
reveal the existence of substantial and material issues
requiring an evidentiary hearing before an administra-
278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tive law judge. The contractual provision that supports
the Association’s claim to the requested information
deals, by its own terms, only with ‘‘better terms and
conditions’’ that may be granted by the Respondents to
non-Association employers. Neither the Association
nor the General Counsel had identified any possible
basis on which the Association would be entitled to
any information about contractual terms with other em-
ployers, if such terms do not qualify as ‘‘better’’ than
those contained in the Association’s labor agreement.
The Respondents, on the other hand, have identified a
plausible reason why disclosure of such other contract
terms would be harmful to the Union and to the other
employers with which it bargains: viz, that such disclo-
sure would permit the Association members to know
the factors effecting their competitors’ labor costs, the
better thereby to tailor their own job bids to fall just
below the competitors’ bids. The Respondents have
conceded the duty to disclose any ‘‘better’’ terms in
the requested contracts and has proposed several ways
of identifying such terms and redacting others. Under
the circumstances, I view the Respondents’ position as
raising triable issues concerning, for example, the
scope of the information to be disclosed, the procedure
for determining that scope, and the need for condi-
tioning disclosure on the maintenance of confidential-
ity. Accordingly, I would deny the General Counsel’s
Motion for Summary Judgment and remand the pro-
ceeding to the Regional Director for further appro-
priate action.
APPENDIX A
NOTICE TO MEMBERS
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 collectively in good
faith with Sound, Public Address and Communication
Employers Association by refusing to furnish copies of
collective-bargaining agreements negotiated between
International Brotherhood of Electrical Workers, AFL–
CIO, Local Union #292 and employers who are not
members of the Association.
WE WILL NOT in any like or related manner act in
derogation of our statutory duty to bargain with the
Association on behalf of its members.
WE WILL, on request, furnish to the Association cop-
ies of collective-bargaining agreements with other em-
ployers who are not members of the Association.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL–CIO,
LOCAL UNION #292
APPENDIX B
NOTICE TO MEMBERS
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 collectively in good
faith with Sound, Public Address and Communication
Employers Association by refusing to furnish copies of
collective-bargaining agreements negotiated between
International Brotherhood of Electrical Workers, AFL–
CIO, Local Union #110 and employers who are not
members of the Association.
WE WILL NOT in any like or related manner act in
derogation of our statutory duty to bargain with the
Association on behalf of its members.
WE WILL, on request, furnish to the Association cop-
ies of collective-bargaining agreements with other em-
ployers who are not members of the Association.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL–CIO,
LOCAL UNION #110