United Graphics, Inc.

National Labor Relations Board - Board Decisions

Sep 15, 1986

281 N.L.R.B. 463 (N.L.R.B. 1986)

UNITED GRAPHICS
United Graphics, Inc. and Graphic Arts Internation-
al Union Local 530, Graphic Arts International
Union, AFL-CIO. Case 19-CA-17365
15 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
Upon a charge filed by Graphic Arts Interna-
tional Union Local 530, Graphic Arts International
Union, AFL-CIO (the Union) on 15 March 1985,
the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region
19, issued a complaint and notice of hearing on 30
April 1985 against United Graphics, Inc. (the Re-
spondent), alleging that it has violated Section
8(a)(5) and (1) of the National Labor Relations
Act. Copies of the charge and complaint and
notice of hearing were duly served on the parties.
On 6 May 1985 the Respondent filed an answer to
the complaint denying the commission of any
unfair labor practices and raising an affirmative de-
fense.
On 21 October 1985 the parties filed a stipulation
of facts and motion to transfer the case to the
Board . The parties agreed that the stipulation of
facts and attached exhibits constitute the entire
record in this case , and that no oral testimony was
necessary or desired by any of the parties . The par-
ties further waived a hearing before an administra-
tive law judge and the issuance of an administra-
tive law judge's decision, and indicated their desire
to submit the case directly to the Board for find-
ings of fact, conclusions of law, and the issuance of
an order . On 16 December 1985 the Board issued
an order approving the stipulation and transferring
the proceeding to the Board. Thereafter, the Gen-
eral Counsel and the Respondent filed briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record in this proceeding, the
Board makes the following
FINDINGS OF FACT
1. JURISDICTION
United Graphics, Inc. is a corporation with an
office and place of business in Seattle , Washington,
where it is engaged in the business of operating a
commercial bindery and related operations. During
the 12-month period preceding the execution of the
stipulation, a representative period , the Respondent
in the course and conduct of its business operations
sold and shipped goods or provided services from
463
its facilities within the State of Washington directly
to customers located outside the State , or sold and
shipped goods or provided services to customers
within the State, which customers were themselves
engaged in interstate commerce by other than indi-
rect means, of a total value in excess of $50,000.
During this same period, the Respondent pur-
chased and caused to be transferred and delivered
to its facilities within the State of Washington
goods and materials valued in excess of $50,000 di-
rectly from sources outside the State or from sup-
pliers within the State , which in turn obtained such
goods and materials directly from sources outside
the State.
The parties stipulated, and we find, that the Re-
spondent 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. THE ALLEGED UNFAIR LABOR PRACTICES
A. ' The Stipulated Facts
The Respondent and the Union have entered
into a series of collective-bargaining agreements,
the most recent of which was effective from 1 May
1983 through 30 April 1985. Under section 4(a) of
that agreement, the Union is recognized as "the ap-
propriate collective-bargaining representative of
employees working in classifications listed in the
wage section (Appendix `A')." 1 At all times materi-
al to this case, the Union has been, and is now, the
exclusive bargaining representative of such employ-
ees under Section 9(a) of the Act with respect to
rates of pay, wages , hours, and other terms and
conditions of employment.
Since at least August 1983 the Respondent has
acquired temporary workers from an employment
agency called Personnel Pool of Seattle, Inc. (Per-
sonnel Pool). Under the parties' collective-bargain-
ing agreement, the Respondent may obtain these
temporary workers whenever it is unable to obtain
such employees through the Union. 2 Personnel
Pool selects the temporary workers and directs
them to report for work with the Respondent. The
Respondent's personnel office plays no role in the
selection or referral of the temporary workers and
keeps no records regarding them . These individuals
generally work for the Respondent from 2 to 4
' Appendix "A" of the agreement lists the job classifications as book-
binder I , bookbinder II, general worker, and shipper , warehouseperson
and/or receiver
2 The Respondent 's section leaders , who are unit members , determine
when temporary workers are needed . The section leaders first contact the
Union to inquire whether temporary workers are available. If the Union
advises that it is unable to supply such workers, the section leaders have
the authority to contact Personnel Pool.
281 NLRB No. 70
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days . After the Respondent 's section leaders verify
the number of hours worked by the temporary
workers, Personnel Pool bills the Respondent's ac-
counting department for the service provided. The
bills that Personnel Pool sends to the Respondent
contain the names of the temporary workers re-
ferred, the hours they worked, and the amount the
Respondent owes Personnel Pool for these serv-
ices. Personnel Pool itself pays the wages and
fringe benefits, if any , of the employees it refers to
the Respondent and withholds all payroll taxes
from the employees' pay.
In late 1984 and early 1985 the Union was in-
formed by unit employees that the temporary
workers referred to the Respondent by Personnel
Pool were performing bargaining unit work. The
Union also learned about this time that the tempo-
rary workers referred by Personnel Pool might not
have been receiving wages and benefits in accord-
ance with the collective-bargaining agreement.3
Previously, the Union had been aware that the Re-
spondent was using temporary workers . The Union
was not aware, however, of the amount of the
wages and benefits that these workers were paid.
On 15 January 19854 the Union's president, John
Bachler, wrote a letter to the Respondent stating,
"It has come to the Union's attention that your
company may not be paying temporary employees
in accordance with the provisions of your collec-
tive bargaining agreement." The letter requested
that the Respondent "furnish [the Union] with the
names and addresses of the temporary employees
... utilized during the past twelve months and the
hourly rate and fringe benefits (if any) which these
employees received ." The letter further stated
that the Union wanted this information in order
that "the Union may be assured that [the Respond-
ent's] payment for these employees is in accord-
ance with the collective bargaining agreement."
Shortly thereafter, in a telephone conversation,
Bachler explained to the Respondent's personnel
director, Jo Powers. that the Union had informa-
tion that the Respondent was using a temporary
employee agency to supply employees, that these
employees were performing bargaining unit work,
and that they might not be receiving the wages and
benefits set forth in the parties ' collective-bargain-
ing agreement. Bachler also said that the Union
could not give preferential treatment to one em-
ployer in the industry. Powers responded that the
temporary workers were not the Respondent's em-
8 The Union acquired this knowledge during a dispute with another
employer involving temporary workers.
* All dates are in 1985 unless otherwise noted
* Bachler also wrote such letters to other employers with which the
Union had a collective-bargaining relationship
ployees and , therefore, the Union was not entitled
to the requested information . Subsequently, by
letter dated 23 January , Powers declined the
Union's information request , stating that "[t]he tem-
poraries we use from outside agencies are not em-
ployees of United Graphics" and therefore "[t]he
provisions of our labor contract are not applicable
to this situation."
On 31 January the Union 's counsel , William A.
Roberts, wrote a letter to Powers in which he
stated in pertinent part:
The Union appreciates your efforts in calling
the Union first when you need temporary
help. However, the Union does have a legiti-
mate concern as to how temporary help is
being paid when you are not able to obtain re-
ferrals from the Union . All persons who per-
form bargaining unit work are covered under
the terms of the collective bargaining agree-
ment and your arrangements with outside
agencies cannot result in these employees
being paid under terms different than the col-
lective bargaining agreement specifies. Ac-
cordingly , this will serve as the request of the
Union that the information requested in the
Union's letter of January 15, 1985 be furnished
the Union at the earliest possible date.
Powers responded by letter dated 15 February, in
which she initially noted her understanding that the
Union was seeking the names and addresses of the
temporary employees in order to determine the
wages they received. Powers' letter then stated
that the outside employment agencies "simply per-
form a service" in providing such workers; that the
Respondent is not furnished with the names, ad-
dresses, and wage rates of the workers supplied to
it; and that, therefore , the Respondent could not
comply with the Union's request.6 Powers addi-
tionally requested that all future correspondence
regarding the matter be referred to the Respond-
ent's counsel Michael Cavanaugh.
On 6 March Roberts wrote Cavanaugh inquiring
about the status of the dispute and stating that the
information requested by the Union was needed to
determine whether the Respondent was adhering to
the collective-bargaining agreement . In his reply
letter dated 11 March, Cavanaugh referred Roberts
to Powers' 15 February letter denying the Union's
information request and further stated that the
Union "[a]pparently" was requesting information
that the Respondent does not possess.
* Contrary to Powers ' statement in that letter , however , the Respond-
ent has stipulated , as noted above, that the bills it receives from Person-
nel Pool contain the names of the temporary workers
UNITED GRAPHICS
B. Contentionsof the Parties
The General Counsel argues that, the requested
information is clearly relevant to, the Union's re-
sponsibility to administer and enforce the, collec-
tive-bargaining agreement . The General, Counsel
notes that the contract itself does not-exclude tem-
porary employees- from its coverage; rather, the
unit is defined as "employees working;in classifica-
tions listed in the wage section (Appendix, A)."
The General Counsel further notes , that the Re-
spondent has-failed to deny that -the temporary em-
ployees supplied by Personnel Pool perform unit
work. She therefore argues that the Respondent is
obligated to furnish the requested information. Ac-
cordingly, relying on the Respondent's stipulation
that Personnel, Pool supplies it with the names of
the temporary employees, the General Counsel
contends that the Respondent violated , , Section
8(a)(5) and (1) of ' the , Act by refusing to provide
this information to the Union. Moreover, in re-
sponse to the Respondent' s argument that it lacks
the other information `sought, the General Counsel
asserts that the Respondent nevertheless has a duty
under, the Act to make a` reasonable effort to secure
the requested information and, if that information
remains unavailable, to explain or document the
reasons for its continued unavailability. The Gener-
al Counsel contends, that the Respondent has failed
to establish that " it made- a.. good-faith effort to
obtain such information from Personnel Pool.
The Respondent argues, that it is not required to
furnish any,of the information because the individ-
uals about whom the Union has requested informa-
tion are note, "employees" of the ` Respondent but
rather are employees of Personnel Pool. Further-
more, it notes that casual employees, such as the
temporaries here, are not considered part of a bar-
gaining unit under Board law even when they are
directly employed by an employer. Therefore,
since the parties' collective-bargaining agreement
simply provides that the Union represents "em-
ployees" working in unit job classifications, the Re-
spondent contends that "[b]oth by law and by con-
tract the Union has no jurisdiction over the em-
ployees of Personnel Pool." The Respondent also
contends that the requested information was not in
its possession or readily available, and notes in this
regard that the Union failed to request information
that is available, that is, the amount the Respondent
pays to Personnel Pool for supplying temporary
workers. The Respondent thus contends that its re-
fusal to obtain the requested information from Per-
sonnel Pool was,not violative of Section 8(a)(5).
465
C Discussion
It is well' established that an employer has an ob-
ligation to furnish, on request, ' `information 'needed
by the bargaining representative for the pro-
per-per-formance of its statutory `duties. NLRB v. Acme In-
dustrial Co., 385 U.S. 432, 435-436 (1967). This ob-
ligation extends beyond the `pe'riod,of contract ne-
gotiations and applies ^ to, labor-management rela-
tions ' during - the` term of a" collective -bargaining
agreement ." Id. .t 436. Information about `the tees
and conditions of employment "of bargaining: unit
personnel is presumptively relevant. Pfizer, Inc.,
268 NLRB 916, 918 '(1984); ` Timkin Roller Bearing
Co., '138 NLRB 15 (1962), enfd. 325`F.2d 746, 750
(6th Cir. 1963), cert. denied.' 376 'U.S. 971 (064).
Although the union has the burden of proving the
relevance of information concerning employees
outside the bargaining 'unit, the standard 'for rel-
evancy is the"sanie "liberal discovery-type stand
ard" in all cases. Loral - Electronic Systems, 253
NLRB-851, 85'3 (1980); ,Curtiss-Wright- Corp., ,145
NLRB -152 (1-963), enfd. 347 F.2d 61 (3d Cir. 1965).
In this' case, the Union has, sought information
concerning the names, addresses, wages, and fringe
benefits of temporary workers who, it,-contends,
and the Respondent does not dispute, have 'per-
formed bargaining unit work.' We note that the par-
ties', collective-bargaining agreement does not spe-
cifically, exclude temporary'' employees from its
coverage. Section 4(a) of the contract simply de-
fines the unit as "employees working in classifica-
tions listed in [the appendiic to the contract]." The
Board consistently has held that the type of °infor-
mation concerning unit employees that the Union
has sought here is 'presumptively relevant to the
Union's role as bargaining agent.? Furthermore,
even- assuming that the,temporary workers are non-
unit employees, it is clear that, information regard-
ing individuals who are engaged in performing the
same tasks as rank-and-file, employees within the
bargaining unit "relates directly to the policing of
contract terms."8 We therefore reject the Respond-
ent's contention,, that „it is not required to furnish
the requested information ,because the temporary
workers, it utilizes are employed by another-,
or ,,are casual employees who,, in any event,
would be excluded, from the unit. Accordingly, we
find ,that the information sought, by the Union is'
relevant to the Union's performance of its obliga-
tions as collective-bargaining representative.
' See, e.g., Georgetown Holiday, Inn, 235 NLRB 485, 486 (1978) (names
and addresses of strike replacements).
8 Globe Stores, 227 NLRB 1251, 1253-1254 (1977) (names, rates -of pay,
and store of employment of group managers performing the same tasks as
rank-and-file employees). -
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We further find that the Respondent's other de-
fense based on nonpossession of the requested in-
formation is without merit. The Respondent has
stipulated that Personnel Pool provides it with the
names of the temporary workers. As for the other
information requested, there is no evidence that the
Respondent has requested Personnel Pool to pro-
vide it with the information that the Union has
sought.9 The Respondent thus has failed to demon-
strate that such information is unavailable.' 0 Ac-
cordingly, we conclude that the Respondent has
violated Section 8(a)(5) and (1) of the Act by fail-
ing and refusing to supply the information request-
ed about the temporary workers' names, addresses,
wages, and fringe benefits.
CONCLUSIONS OF LAW
1. The Respondent, United Graphics, Inc., is an
employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
2. Graphic Arts International Union Local 530,
Graphic Arts International Union, AFL-CIO is a
labor organization within the meaning of Section
2(5) of the Act.
3. By failing and refusing to furnish information
concerning the Respondent's use of temporary
workers that the Union requested in its letter of 15
January 1985, the Respondent has engaged in
unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
4. The above-described unfair labor practices
affect commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act,
we shall order it to cease and desist therefrom and
to take certain affirmative action designed to effec-
tuate the policies of the Act. Specifically, we shall
order the Respondent, on request, to furnish to the
Union the information in its possession regarding
the names of the temporary workers supplied by
Personnel Pool. We also shall order the Respond-
ent to make a reasonable effort to secure the other
information requested in the Union's 15 January
1985 letter and, if that information remains unavail-
able, to explain or document the reasons for its
continued unavailability.
ORDER
The National Labor Relations Board orders that
the Respondent , United Graphics, Inc., Seattle,
Washington , its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain collectively in good faith
with Graphic Arts International Union Local 530,
Graphic Arts International Union , AFL-CIO by
failing and refusing to furnish information concern-
ing the Respondent 's use of temporary workers
that the Union requested in its letter of 15 January
1985.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, furnish the information in its pos-
session regarding the names of the temporary
workers supplied by Personnel Pool.
(b) Make a reasonable effort to secure the other
information requested in the Union 's 15 January
1985 letter and, if that information remains unavail-
able, explain or document the reasons for its con-
tinued unavailability.
(c) Post at its facility in Seattle, Washington,
copies of the attached notice marked "Appen-
dix. " 11 Copies of the notice, on forms provided by
the Regional Director for Region 19, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt 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 altered, 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 Respondent has taken to comply.
9 In NLRB v Rockwell-Standard Corp., 410 F 2d 953, 958 (6th Cir
1969), enfg 166 NLRB 124 (1967), the Sixth Circuit noted that a party
that cannot furnish some of the information requested must supply all
that it has and state under oath that it cannot furnish the rest.
10 See Doubarn Sheet Metal, 243 NLRB 821, 824 (1979)
' I 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 Nation-
al 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 "
UNITED GRAPHICS 467
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 ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to bargain collectively in
good faith with Graphic Arts International Union
Local 530, Graphic Arts International Union,
AFL-CIO by failing and refusing to furnish infor-
mation concerning our use of temporary workers
that the Union requested in its letter of 15 January
1985.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL.., on request, furnish the information in
our possession regarding the names of the tempo-
rary workers supplied by Personnel Pool.
WE WILL make a reasonable effort to secure the
other information requested in the Union's 15 Janu-
ary 1985 letter and, if that information remains un-
available, to explain or document the reasons for its
continued unavailability.
UNITED GRAPHICS, INC.