E.N. Bisso & Sons

National Labor Relations Board - Board Decisions

Sep 13, 1995

318 N.L.R.B. 1098 (N.L.R.B. 1995)

1098
318 NLRB No. 120
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Union requested the Respondent to provide it with a current
list of bargaining unit employees and their addresses. Such informa-
tion is presumptively relevant and must be furnished on request. See,
e.g., Masonic Hall, 261 NLRB 436 (1982); and Mobay Chemical
Corp., 233 NLRB 109 (1977).
2 We therefore deny the Respondent’s requests that the amended
complaint be dismissed and that it be awarded litigation costs and
attorney’s fees.
E. N. Bisso & Sons, Inc. and Seafarers Inter-
national Union, Atlantic, Gulf, Lakes and In-
land Waters District, AFL–CIO. Case 15–CA–
13088
September 13, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND TRUESDALE
Upon a charge and amended charge filed on Feb-
ruary 14 and March 20, 1995, respectively, the General
Counsel of the National Labor Relations Board issued
an amended complaint and notice of hearing on April
4, 1995, alleging that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the National Labor Relations
Act by refusing the Union’s request to bargain and to
furnish necessary and relevant information following
the Union’s certification in Case 15–RC–7817. (Offi-
cial notice is taken of the ‘‘record’’ in the representa-
tion proceeding 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 to the amended complaint admitting in part
and denying in part the allegations in the amended
complaint, and requesting that the amended complaint
be dismissed.
On August 21, 1995, the General Counsel filed a
Motion for Summary Judgment. On August 23, 1995,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. On September 5, 1995, 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
bargain and to furnish information that is relevant and
necessary to the Union’s role as bargaining representa-
tive, but attacks the validity of the certification on the
basis of its objections to conduct alleged to have af-
fected the results of the election in the representation
proceeding. In addition, in its response to the Notice
to Show Cause, the Respondent contends that it is enti-
tled to a hearing on the allegations in the amended
complaint that it has refused to bargain with and to
furnish information to the Union.
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. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
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 issues warranting a
hearing with respect to the amended complaint’s alle-
gations that the Respondent has refused to bargain and
to furnish necessary and relevant information to the
Union.1 The Respondent’s answer to the amended
complaint admits all the material allegations in this re-
gard. Thus, as there are no disputed issues with respect
to the Respondent’s refusal to bargain and to furnish
information, a hearing on these allegations is clearly
unwarranted.
Accordingly, we grant the Motion for Summary
Judgment.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
with an office and place of business in New Orleans,
Louisiana, has been engaged in the business of ship
docking. During the 12-month period ending February
28, 1995, the Respondent, in conducting its business
operations, purchased and received at its facility goods
valued in excess of $50,000 directly from points lo-
cated outside the State of Louisiana. 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 February 22 and March
3, 1994, the Union was certified on February 17, 1995,
as the collective-bargaining representative of the em-
ployees in the following appropriate unit:
All deckhands, able-bodied deckhands, engineers,
and oilers employed on all Employer owned and
operated vessels, but excluding dispatchers, me-
chanics, clerical employees, professional employ-
ees, guards and supervisors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
1099E. N. BISSO & SONS
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. Refusal to Bargain
About February 24 and March 9, 1995, the Union
requested the Respondent to bargain with it as the ex-
clusive bargaining representative of the unit. In addi-
tion, about February 6 and 23, 1995, the Union re-
quested the Respondent to furnish it with a current list
of bargaining unit employees and their addresses,
which information is necessary and relevant to the
Union’s role as the exclusive bargaining representative
of the unit. The Respondent, however, since about
February 24, 1995, has failed and refused to recognize
and bargain with the Union as the exclusive collective-
bargaining representative of the unit, and, since about
February 10, 1995, has failed and refused to furnish
the Union with the information requested. 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 failing and refusing 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 information, the Re-
spondent has engaged in unfair labor practices affect-
ing 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 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, E. N. Bisso & Sons, Inc., New Orleans,
Louisiana, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with Seafarers International
Union, Atlantic, Gulf, Lakes and Inland Waters Dis-
trict, AFL–CIO as the exclusive bargaining representa-
tive of the employees in the bargaining unit, and refus-
ing to furnish the Union information that is relevant
and necessary to its role as the exclusive 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.
(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 deckhands, able-bodied deckhands, engineers,
and oilers employed on all Employer owned and
operated vessels, but excluding dispatchers, me-
chanics, clerical employees, professional employ-
ees, guards and supervisors as defined in the Act.
(b) Furnish the Union with the information that it
requested on February 6 and 23, 1995.
(c) Post at its facility in New Orleans, Louisiana,
copies of the attached notice marked ‘‘Appendix.’’3
Copies of the notice, on forms provided by the Re-
gional Director for Region 15 after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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 notices are not al-
tered, 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 Seafarers Inter-
national Union, Atlantic, Gulf, Lakes and Inland Wa-
ters District, AFL–CIO as the exclusive representative
of the employees in the bargaining unit, and WE WILL
NOT refuse to furnish the Union information that is rel-
1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
evant 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 bargaining unit:
All deckhands, able-bodied deckhands, engineers,
and oilers employed on all our owned and oper-
ated vessels, but excluding dispatchers, mechan-
ics, clerical employees, professional employees,
guards and supervisors as defined in the Act.
WE WILL furnish the Union with the information
that it requested on February 6 and 23, 1995.
E. N. BISSO & SONS, INC.