Carry Cos. of Illinois

National Labor Relations Board - Board Decisions

Nov 8, 1996

322 N.L.R.B. 76 (N.L.R.B. 1996)

1
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er­
rors so that corrections can be included in the bound volumes.
Carry Companies of Illinois, Inc and Automobile
Mechanics Local 701, International Association
of Machinists and Aerospace Workers, AFL–
CIO. Case 13–CA–34482
November 8, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND FOX
Pursuant to a charge filed on July 29, 1996, the
General Counsel of the National Labor Relations
Board issued a complaint and notice of hearing on Au-
gust 15, 1996, alleging that the Respondent has 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 furnish necessary and relevant information fol­
lowing the Union’s certification in Case 13–RC–
19183. (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 Respond­
ent filed an answer and amended answer admitting in
part and denying in part the allegations in the com­
plaint.
On October l, 1996, the General Counsel filed a
Motion to Transfer Proceedings to the Board and Mo­
tion for Summary Judgment. On October 2, 1996, the
Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. On October 30, 1996, the Re­
spondent 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 amended answer and response, the Respondent
admits its refusal to bargain and to provide the Union
with information, but attacks the validity of the certifi­
cation on the basis of its contention in the representa­
tion proceeding that the Union’s original showing of
interest in support of its petition for an election may
have been obtained through improper means.1 In addi-
1 The Respondent raised this issue for the first time following the
first election and the Board’s subsequent order adopting the hearing
officer’s findings and recommendations and setting aside that elec­
tion on the ground that the Union had engaged in objectionable con-
duct by promising employees reduced initiation fees during the criti­
cal period between the petition and the election. Although the Re­
spondent had contested the appropriateness of the unit prior to the
first election, the Respondent does not contest, and admits, the ap­
propriateness of the unit in the instant proceeding.
tion, the Respondent in its answer denies that the in-
formation requested by the Union is necessary and rel­
evant to its duties as the exclusive bargaining rep­
resentative of the unit.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen­
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre­
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding.2 We therefore find that the Respondent has
not raised any representation issue that is properly lit­
igable in this unfair 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 requir­
ing a hearing with respect the Union’s request for in-
formation. The Union requested the following informa­
tion from the Respondent:
1. An updated employee list including job clas­
sifications and dates of hire for all bargaining unit
employees and employees doing bargaining unit
work.
2. Current wages for all bargaining unit em­
ployees and employees doing bargaining unit
work specifying hourly or salaried.
3. Work schedules for each department and
hours of work for all bargaining unit employees
and employees doing bargaining unit work.
4. Copies of company savings plan, 401K plan,
or any other investment policy, or retirement sav­
ings plan, that is in effect, including costs to em­
ployees and employer’s contribution to said plans.
5. Copies of any and all current health care
plans, including benefits provided, and extra cost
benefits for all bargaining unit employees and em­
ployees doing bargaining unit work and employ­
er’s costs of providing any and all benefits.
6. A current list of all bargaining unit employ­
ees and employees doing bargaining unit work,
participating in said plans outlined in #4 and #5
and the costs incurred by them.
7. Bonus pay plans, incentive plans, safety in­
centive plans etc., currently in effect.
2 In its response to the Notice to Show Cause, the Respondent
cites Ron Tirapelli Ford v. NLRB, 987 F.2d 433 (7th Cir. 1993); and
Perdue Farms v. NLRB, 935 F. Supp. 713 (D.N.C. July 23, 1996),
in support of its argument that the Regional Director should have
dismissed or investigated the Union’s petition following the Board’s
order directing a second election based on the Union’s objectionable
conduct during the critical period. In both of those cases, however,
there was at least some evidence supporting the allegations that the
petitions were tainted. Here, as found by the Regional Director, the
Respondent’s request for dismissal or further investigation of the pe­
tition following the Board’s order directing a second election was
based on pure conjecture and was unsupported by any evidence.
322 NLRB No. 76
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8. Any other payroll deductions to which all
bargaining unit employees and employees doing
bargaining unit work have agreed to prior to the
election on June 7, 1996.
It is well established that such information is presump­
tively relevant for purposes of collective bargaining
and must be furnished on request. See, e.g., Masonic
Hall, 261 NLRB 436 (1982); and Mobay Chemical
Corp., 233 NLRB 109 (1977).
Accordingly, we grant the Motion for Summary
Judgment.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and
place of business in Bridgeview, Illinois, is engaged in
the transportation, warehousing and packing of food
products. During the last calendar year, in conducting
its business operations, the Respondent sold and
shipped from its Bridgeview, Illinois facility goods
valued in excess of $50,000 directly to points outside
the State of Illinois. 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 a second election held June 7, 1996,4 the
Union was certified on July 22, 1996, as the exclusive
collective-bargaining representative of the employees
in the following appropriate unit:
All full-time and regular part-time mechanics, me­
chanics shift leaders, tank wash employees, tank
wash shift leaders, and warehouse employees em­
ployed by Respondent at its Bridgeview, Illinois
facility and warehouse employees employed by
Respondent at its Bedford Park, Illinois facility;
but excluding all other employees, including of­
fice clerical, professional employees, guards and
supervisors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
3 Member Fox notes that she did not participate in the underlying
representation case. However, she agrees with her colleagues that the
Respondent has raised no new issues in this ‘‘technical’’ 8(a)(5) case
and that summary judgment is therefore appropriate.
4 As noted above, on February 21, 1996, the Board issued an order
setting aside the first election and ordering a second election based
on the hearing officer’s findings that the Union had engaged in ob­
jectionable conduct during the critical period before the election by
promising employees reduced initiation fees.
B. Refusal to Bargain
Since about June 28, 1996, the Union has requested
the Respondent to bargain and to furnish necessary and
relevant information, and since July 17, 1996, the Re­
spondent has refused. We find that this refusal con­
stitutes an unlawful refusal to bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after July 17, 1996, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit and
to furnish the Union relevant and necessary informa­
tion, the Respondent has engaged in unfair labor prac­
tices affecting commerce within the meaning of Sec­
tion 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Sec­
tion 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 un­
derstanding in a signed agreement. We also shall order
the Respondent to furnish the Union the information
requested.
To ensure that the employees are accorded the serv­
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe­
riod of the certification as beginning the date the Re­
spondent 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, Carry Companies of Illinois, Inc.,
Bridgeview, Illinois, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Automobile Mechanics
Local 701, International Association of Machinists and
Aerospace Workers, AFL–CIO, as the exclusive bar-
gaining representative of the employees in the bargain­
ing unit, and refusing to furnish the Union information
that is relevant and necessary to its role as the exclu­
sive bargaining 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.
CARRY COS. OF ILLINOIS 3
(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 mechanics, me­
chanics shift leaders, tank wash employees, tank
wash shift leaders, and warehouse employees em­
ployed by Respondent at its Bridgeview, Illinois
facility and warehouse employees employed by
Respondent at its Bedford Park, Illinois facility;
but excluding all other employees, including of­
fice clerical, professional employees, guards and
supervisors as defined in the Act.
(b) Furnish the Union the information that it re-
quested on June 28, 1996.
(c) Within 14 days after service by the Region, post
at its facility in Bridgeview, Illinois, copies of the at­
tached notice marked ‘‘Appendix.’’5 Copies of the no­
tice, on forms provided by the Regional Director for
Region 13, after being signed by the Respondent’s au­
thorized representative, shall be posted by the Re­
spondent 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 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 pro­
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re­
spondent at any time since July 29, 1996.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent 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
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.’’
Dated, Washington, D.C. November 8, 1996
������������������
William B. Gould IV, Chairman
������������������
Margaret A. Browning, Member
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Sarah M. Fox, 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 Automobile
Mechanics Local 701, International Association of Ma­
chinists and Aerospace Workers, AFL–CIO, as the ex­
clusive representative of the employees in the bargain­
ing.
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 mechanics, me­
chanics shift leaders, tank wash employees, tank
wash shift leaders, and warehouse employees em­
ployed by us at our Bridgeview, Illinois facility
and warehouse employees employed by us at our
Bedford Park, Illinois facility; but excluding all
other employees, including office clerical, profes­
sional employees, guards and supervisors as de-
fined in the Act.
WE WILL furnish the Union the information that it
requested on June 28, 1996.
CARRY COMPANIES OF ILLINOIS, INC.