Avondale Industries

National Labor Relations Board - Board Decisions

Oct 22, 1997

324 N.L.R.B. 805 (N.L.R.B. 1997)

805
324 NLRB No. 131
AVONDALE INDUSTRIES
1 Although the Respondent denies the appropriateness of the unit,
we note that the Respondent entered into a stipulated election agree-
ment, and the challenged ballots were resolved in the underlying rep-
resentation case. Further, it appears that the Respondent’s denial is
based on its contention that the Union has not been lawfully cer-
tified.
2 The Respondent obtained the unredacted lists on February 18,
1997, pursuant to an Order of the United States Court of Appeals
for the Fifth Circuit in a case filed by the Respondent under the
Freedom of Information Act.
Avondale Industries, Inc. and New Orleans Metal
Trades Council, AFL–CIO. Cases 15–CA–14326
and 15–CA–14327
October 22, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Pursuant to a charge filed on May 9, 1997, and an
amended charge filed on May 16, 1997, the General
Counsel of the National Labor Relations Board issued
a consolidated complaint on June 3, 1997, 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 and to furnish necessary
and relevant information following the Union’s certifi-
cation in Case 15–RC–7767. (Official notice is taken
of the ‘‘record’’ in the representation proceeding as de-
fined 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 denying in part the allegations in the com-
plaint, and asserting certain affirmative defenses.
On August 8, 1997, the General Counsel filed a Mo-
tion for Summary Judgment. On August 11, 1997, 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 September 5, 1997, the Re-
spondent filed an opposition to the Motion for Sum-
mary Judgment and a motion for leave to take deposi-
tions, and on September 12, 1997, filed a motion to
substitute motion for leave to take depositions. On
September 16, 1997, the General Counsel filed an op-
position to the Respondent’s application for leave to
take depositions.
Ruling on Motion for Summary Judgment
In its answer and response the Respondent admits its
refusal to bargain and to furnish information to the
Union but attacks the validity of the certification on
the basis of its challenges and objections to the elec-
tion in the representation proceeding.1
The Respondent asserts that newly discovered and
previously suppressed evidence, consisting of
unredacted, marked voting lists,2 establishes a prima
facie case of voting irregularities sufficient to require
setting the election aside, thus requiring a hearing
under Section 102.65(e)(1) of the Board’s Rules and
Regulations. The Respondent also filed a motion for
leave to take depositions from 126 individuals under
Section 102.30 of the Board’s Rules and Regulations.
The Respondent submits that those individuals were
employees of the Respondent who were recorded as
absent from work on the day of the election and who
were not recorded on ‘‘gate logs’’ as having entered
the premises where the election was conducted that
day, but who were nonetheless marked on the
unredacted voting lists as having voted. The Respond-
ent contends that their depositions would demonstrate
that they in fact did not vote and that unchallenged
votes were cast in their names by other individuals.
As the General Counsel notes, the Board has pre-
viously rejected motions to reopen the record to in-
clude the voting lists, first in their redacted form and
then in their unredacted form. On February 5, 1997,
the Board issued a Decision and Direction in the un-
derlying representation proceeding, affirming the hear-
ing officer’s recommendation to overrule the Respond-
ent’s election objections and denying the Respondent’s
motion to reopen the record to include the Master and
Zone Voting Lists (which the Respondent then pos-
sessed in their redacted form) as lacking the specificity
required by Section 102.65(e) of the Board’s Rules and
Regulations. The Board also found no merit in the Re-
spondent’s claim that the failure of the Regional Office
to produce the lists earlier had prejudiced its presen-
tation of the case.
On March 18, 1997, the Board denied the Respond-
ent’s February 20, 1997 motion to reopen the record
to receive new evidence and to stay the certification.
The Respondent sought to reopen the record to receive
‘‘the original multi-color marked and unredacted mas-
ter voting lists . . . and the original multi-color
marked and unredacted zone voting lists for each poll-
ing place.’’ The Respondent asserted that testimony
concerning the lists would support its postelection ob-
jections alleging voter fraud and irregularities suffi-
cient to require setting aside the election. The Board
held that the Respondent’s motion lacked merit and
raised issues previously considered. In particular, the
Board held again that the Respondent’s motion lacked
the specificity required by Section 102.65(e) of the
Rules. The Board added, ‘‘[F]urthermore, given the ex-
haustive litigation of all challenged ballot and objec-
tions issues—comprising the examination of approxi-
mately 200 witnesses and the presentation of extensive
documentary evidence, we find no merit in the Em-
ployer’s claim that the absence of ‘multicolor marked
and unredacted’ lists prejudiced its presentation of the
case.’’
Finally, in the Board’s April 29, 1997 Decision and
Certification of Representative, the Board noted its
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00805 Fmt 0610 Sfmt 0610 D:\NLRB\324.099 APPS10 PsN: APPS10
806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
prior denials of the Respondent’s attempts to introduce
the voting lists into evidence, and in reviewing the Re-
gional Director’s report, declined to consider the Re-
spondent’s submission of the unredacted lists.
Thus, it is clear that, with the exception of the Re-
spondent’s proffer of ‘‘gate logs’’ and sick leave
records and the depositions that it now seeks to take,
all representation issues raised by the Respondent were
or could have been litigated in the prior representation
proceeding. The Respondent does not offer to adduce
at a hearing any newly discovered and previously un-
available 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).
With respect to the depositions and related proffers,
we find that the Respondent’s representations concern-
ing them add nothing of significance to its earlier prof-
fers of the voting lists, for which the Board declined
to reopen the record. The Respondent concedes that it
is not in possession of all the gate logs and that the
log sign-in requirement applies only at ‘‘times other
than shift change and during the lunch break.’’ Thus,
the fact that a particular voter’s name may not appear
on any of the gate logs is not evidence that the vote
was cast by someone else in that individual’s name. In
these circumstances, and given that the Petitioner won
the election by 318 votes, we agree with the General
Counsel that the Respondent’s assertions of fraud are
too speculative to warrant permitting it to take the 126
requested depositions. We therefore deny the motion
for leave to take depositions. See Thomas-Davis Medi-
cal Centers, 324 NLRB 29 fn. 2 (1997).
We also find that there are no issues warranting a
hearing with respect to the Union’s request for infor-
mation. The complaint alleges that the Union requested
the following information from the Respondent: the
full name, address, and phone number of all bargaining
unit employees. Although the Respondent’s answer de-
nies that this information is necessary and relevant to
the Union’s performance of its duties as the exclusive
bargaining representative of the unit, it is well estab-
lished that such information is presumptively relevant
for purposes of collective bargaining and must be fur-
nished on request. See, e.g., Maple View Manor, Inc.,
320 NLRB 1149 (1996).
Accordingly, we grant the Motion for Summary
Judgment.
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 Avondale, Lou-
isiana (its facility), has been engaged in business as a
ship builder. During the 12-month period ending April
30, 1997, the Respondent, in conducting its business
operations described above, sold and shipped from its
facility goods valued in excess of $50,000 directly to
points outside the State of Louisiana, and purchased
and received at its facility goods valued in excess of
$50,000 directly from points outside the State of Lou-
isiana. We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held June 25, 1993, the
Union was certified on April 29, 1997, as the exclusive
collective-bargaining representative of the employees
in the following appropriate unit:
All production and maintenance employees em-
ployed by the Employer at its Avondale, Algiers,
and Westwego, Louisiana, locations, excluding all
office clerical employees employed by the Em-
ployer at the Employer’s Service Foundry facility
located in Waggaman, Louisiana, guards, profes-
sional employees, 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 May 5, 1997, the Union has requested the Re-
spondent to bargain and to furnish information, and,
since May 9, 1997, 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.
CONCLUSION OF LAW
By refusing on and after May 9, 1997, 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 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.
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00806 Fmt 0610 Sfmt 0610 D:\NLRB\324.099 APPS10 PsN: APPS10
807AVONDALE INDUSTRIES
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.’’
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 services of their selected bargaining agent for the
period provided by the law, we shall construe the ini-
tial period of the certification 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, Avondale Industries, Inc., Avondale, Lou-
isiana, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with New Orleans Metal
Trades Council, AFL–CIO as the exclusive bargaining
representative of the employees in the bargaining unit,
and refusing to furnish the Union information that is
relevant and necessary to its role as the exclusive bar-
gaining 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 production and maintenance employees em-
ployed by the Employer at its Avondale, Algiers,
and Westwego, Louisiana, locations, excluding all
office clerical employees employed by the Em-
ployer at the Employer’s Service Foundry facility
located in Waggaman, Louisiana, guards, profes-
sional employees, and supervisors as defined in
the Act.
(b) Furnish the Union information that it requested
on May 5, 1997.
(c) Within 14 days after service by the Region, post
at its facilities in Avondale, Algiers, and Westwego,
Louisiana, copies of the attached notice marked ‘‘Ap-
pendix.’’3 Copies of the notice, on forms provided by
the Regional Director for Region 15 after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, 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 Respondent at any time since May 9,
1997.
(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.
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 New Orleans
Metal Trades Council, AFL–CIO as the exclusive rep-
resentative of the employees in the bargaining unit,
and WE WILL NOT refuse to furnish the Union informa-
tion that is relevant and necessary to its role as the ex-
clusive bargaining representative of the unit employ-
ees.
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:
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00807 Fmt 0610 Sfmt 0610 D:\NLRB\324.099 APPS10 PsN: APPS10
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees em-
ployed by us at our Avondale, Algiers, and
Westwego, Louisiana, locations, excluding all of-
fice clerical employees employed by us at our
Service Foundry facility located in Waggaman,
Louisiana, guards, professional employees, and
supervisors as defined in the Act.
WE WILL furnish the Union the information it re-
quested on May 5, 1997.
AVONDALE INDUSTRIES, INC.
VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00808 Fmt 0610 Sfmt 0610 D:\NLRB\324.099 APPS10 PsN: APPS10