National Cargo Bureau, Inc.

National Labor Relations Board - Board Decisions

Feb 13, 2001

333 N.L.R.B. 39 (N.L.R.B. 2001)

333 NLRB No. 39
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.
National Cargo Bureau, Inc. and Marine Clerks As-
sociation, Local 63, International Longshore and
Warehouse Union, AFL–CIO. Case 21–CA–
34287.
February 13, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND WALSH
Pursuant to a charge filed on November 14, 2000, the
General Counsel of the National Labor Relations Board
issued a complaint on December 5, 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 following the Union’s certification in
Case 21–RC–20229. (Official notice is taken of the “re-
cord” 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
Respondent filed an answer admitting in part and deny-
ing in part the allegations in the complaint.
On December 27, 2000, the Acting General Counsel
filed a Motion for Summary Judgment. On December
29, 2000, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent filed
a response opposing the motion and requesting oral ar-
gument.
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
based on its contention, raised and rejected in the repre-
sentation proceeding, that the Union is disqualified from
representing the unit employees because of a conflict of
interest.1

1 The Respondent’s answer to the complaint admits that the Union
filed the charge on November 14, 2000, but denies that the charge was
served on the Respondent on November 16, 2000. Although the Acting
General Counsel has not established in this proceeding that the charge
was served on the Respondent on November 16, 2000, the Acting Gen-
eral Counsel has attached to his motion copies of the charge and an
affidavit of service stating that the charge was re-served on the Re-
spondent and its counsel by regular mail dated November 29, 2000.
The Respondent has not challenged the authenticity of those documents
in response to the Notice to Show Cause. Accordingly, we find that the
Respondent’s denial of this complaint allegation does not raise any
issues warranting a hearing.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding.2 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).
We also find that there are no issues warranting a hear-
ing with respect to the Union’s request for information.
The complaint alleges, and the Respondent admits, that
the Union requested the following information from the
Respondent by letter dated October 11, 2000:

1. An up-to-date seniority roster which includes
the name, hire date, job classification, rate of pay,
and shift assignment of each employee in the bar-
gaining unit.
2. Copies of the current Medical, Hospital, Den-
tal, Vision, Long Term Disability, Pension Plan
booklets and descriptions for any other benefits of-
fered to employees.
3. A current copy of the employee handbook, if
any, and any rules and regulations published and is-
sued to bargaining unit employees.
4. The costs to the Company, either monthly or
hourly, or any benefit presently offered to employ-
ees.
5. The names of those Company representatives
who have the authority to resolve on-the-job dis-
putes or grievances.

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.3 The Respondent has not at-

2 We note that the Acting General Counsel’s motion mistakenly as-
serts that the Respondent did not request review of the Regional Direc-
tor’s August 18, 2000 Decision and Direction of Election in which the
Regional Director rejected the Respondent’s contention that the Union
should be disqualified from representing staff surveyors because of the
existence of a conflict of interest. As the Respondent correctly points
out in its response to the Notice to Show Cause, the Respondent did, in
fact, file a request for review, which was denied by the Board in an
unpublished order dated September 15, 2000. This erroneous assertion
by the Acting General Counsel does not raise a material issue of fact
warranting a hearing nor does it affect our disposition of this case.
The Acting General Counsel’s motion also erroneously states that
the representation petition in Case 21–RC–20229 was filed on April 29,
2000, rather than the correct date of June 29, 2000, and that the Union
renewed its bargaining and information requests by letter dated No-
vember 3, 2000. These inadvertent errors are not relevant to our con-
sideration of the Acting General Counsel’s motion.
3 See, e.g., U.S. Family Care San Bernardino, 315 NLRB 108
(1994); Trustees of Masonic Hall, 261 NLRB 436 (1982); and Mobay
Chemical Corp., 233 NLRB 109 (1977).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
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.4
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a New York
corporation, with a facility located at 302 West Fifth
Street, Suite 205, San Pedro, California, has been en-
gaged in the marine surveying business at ports through-
out the United States, including the Port of Los Angeles
in San Pedro, California. During the 12-month period
ending December 29, 2000, a representative period, the
Respondent, in conducting its business operations de-
scribed above, performed services valued in excess of
$50,000 in locations outside the State of California. 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 September 15, 2000, the
Union was certified on September 25, 2000, as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit:
All full-time and regular part-time staff surveyors em-
ployed by the Employer at its 302 West 5th Street, San
Pedro, California location; excluding all office clerical
employees, administrative assistants, guards and
supervisors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since about October 11, 2000, the Union has requested
the Respondent to bargain and to furnish information,
and, since about November 3, 2000, 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.

4 The Respondent’s request for oral argument is denied.
CONCLUSIONS OF LAW
By refusing on and after November 3, 2000, 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 furnis h the Union the information requested in its
letter dated October 11, 2000.
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, National Cargo Bureau, Inc., San Pedro,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with Marine Clerks Associa-
tion, Local 63, International Longshore and Warehouse
Union, AFL–CIO, as the exclusive bargaining represen-
tative 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, 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 staff surveyors em-
ployed by the Employer at its 302 West 5th Street, San
Pedro, California location; excluding all office clerical
employees, administrative assistants, guards and
supervisors as defined in the Act.
NATIONAL CARGO BUREAU, INC. 3
(b) Furnish the Union the information requested by it
on about October 11, 2000.
(c) Within 14 days after service by the Region, post at
its facility in San Pedro, California, copies of the at-
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region
21, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent 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 notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since November 3,
2000.
(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. February 13, 2001

John C. Truesdale, Chairman

Wilma B. Liebman, Member

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 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.”

Dennis P. Walsh, 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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT refuse to bargain with Marine Clerks
Association, Local 63, International Longshore and
Warehouse Union, AFL–CIO as the exclusive represen-
tative 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 and regular part-time staff surveyors em-
ployed by us at our 302 West 5th Street, San Pedro,
California location; excluding all office clerical em-
ployees, administrative assistants, guards and supervi-
sors as defined in the Act.

WE WILL furnish the Union the information it re-
quested in its letter dated October 11, 2000.
NATIONAL CARGO BUREAU, INC.