Detroit Auto Auction

National Labor Relations Board - Board Decisions

Oct 31, 1997

324 N.L.R.B. 143 (N.L.R.B. 1997)

1
324 NLRB No. 143
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.
Detroit Auto Auction, Inc. and International Union,
United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW),
AFL–CIO. Case 7–CA–39942
October 31, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Pursuant to a charge filed on June 18, 1997, the
General Counsel of the National Labor Relations
Board issued a complaint and notice of hearing on July
23, 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 certification in Case 7–RC–20648. (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 admitting in part and denying in part the al-
legations in the complaint.
On August 29, 1997, the General Counsel filed a
Motion for Summary Judgment. On September 3,
1997, 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.
Ruling on Motion for Summary Judgment
In its answer and response the Respondent admits its
refusal to bargain and to furnish information, but at-
tacks the validity of the certification on the basis of its
objections to conduct alleged to have affected the re-
sults of the election in the representation proceeding.
In addition, the Respondent denies that the information
requested is necessary and relevant to the Union’s du-
ties as the exclusive bargaining representative 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. 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).
Accordingly, we grant the Motion for Summary Judg-
ment.
We also find that there are no factual issues warrant-
ing a hearing with respect to the Union’s request for
information. The Union requested the following infor-
mation from the Respondent:
1. Current list of all bargaining unit employees
(working, laid off, or on any type leave of ab-
sence), including their:
• Names, addresses, phone numbers and so-
cial security numbers
• Date of birth;
• Date of hire;
• Gender;
• Classification;
• Rate of Pay;
• Classification Seniority, if any;
• Current hours of work and/or shift.
2. The average total labor cost per hour, per em-
ployee, including all wages, overtime, vacation,
holiday, shift premiums, bonuses, medical insur-
ance, dental insurance, vision insurance, sickness
and accident insurance, long-term disability insur-
ance, life insurance, FICA, unemployment com-
pensation, and any other costs you have. We
would like this specifying the per hour cost of
each item.
3. The total hours worked by all bargaining unit
employees for each of the past three years.
4. Income statements for the last three (3) full
years.
5. General and administrative expenses, including
details on management salaries and benefits.
6. Operating plans, budgets, forecasts or other
documents dealing with projected costs and oper-
ating results.
7. A list of all your competitors, including com-
pany name, address, and whether they are union-
ized. Also, any wage and benefit information you
have on them.
8. A current list of all fringe benefits you are pro-
viding such as vacation, holiday, sick days, etc.,
and all insurance such as medical, life, AD&D,
sickness and accident, vision, hearing, dental, etc.,
including an estimated cents per hour cost of
each.
9. The following information relative to any pen-
sion plan:
a. Active pension plan participants categorized
by age, seniority and credited service (vesting and
benefit).
b. Retired participants categorized by date of re-
tirement, age, credited service at retirement,
amount and type of monthly benefit.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 See Dexter Fastener Technologies, 321 NLRB 612 (1996), and
cases cited therein.
c. Annual company contributions to the pension
plan with schedule of dates and level of contribu-
tions.
d. The three most recent actuarial evaluations.
e. The three latest Department of Labor 5500
forms, including Schedule B and SSA.
f. The three latest trustee reports. If the plan is
carried by an insurance company, then the latest
three annual reports from the insurance company.
g. A statement indicating any major changes in
fund accounting procedures or assumptions which
have occurred in the past three years.
h. A current employee handbook, including
rules, regulations, penalties, etc.
10. A current employee handbook, including
rules, regulations, penalties, etc.
11. A current company policy manual.
12. A list of all temporary and/or probationary
workers currently employed by your company.
13. A detailed list of all work that is currently
being subcontracted by any temporary service,
and any work that may be subcontracted in the
next 12 month period, including the name and ad-
dress of whom the work is contracted to.
It is well established that, with the exception of the
employees’ social security numbers requested in para-
graph 1, the financial information and the information
on competitors requested in paragraphs 4–7, and the
information regarding nonunit temporary employees
and subcontracting requested in paragraphs 12 and 13,
all of the foregoing information is presumptively rel-
evant for purposes of collective bargaining and must
be furnished on request.1
Accordingly, we grant the General Counsel’s Motion
for Summary Judgment and will order the Respondent
to bargain and to furnish the requested information
with the exception of the information mentioned above
in paragraphs 1, 4–7, 12 and 13. We deny summary
judgment with respect to the information mentioned
above in paragraphs 1, 4–7, 12 and 13.
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 Taylor, Michi-
gan, has been engaged in the wholesale sale of used
automobiles to dealers. During the year ending Decem-
ber 31, 1996, the Respondent, in conducting its busi-
ness operations described above, derived gross reve-
nues in excess of $1 million and shipped goods valued
in excess of $50,000 from its Taylor facilities directly
to points located outside the State of Michigan. 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 organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held August 11, 1995, the
Union was certified on January 14, 1997, as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit:
All full-time and regular part-time lot drivers,
service truck drivers, condition report writers,
check-in employees, sales lineup coordinators, de-
tailers, car washers, buffers, cleaning persons,
recon lot drivers, washer/dryer janitors, mechan-
ics, metal technicians, paint technicians, bodyshop
clerks, porters, parts clerks, trim technicians, pick-
up and delivery drivers, fleet/lease condition re-
port writers, fleet/lease lot drivers and crew chiefs
employed by the Employer at or out of its facili-
ties located at 20225 Eureka Road and 20911
Gladwin, Taylor, Michigan; but excluding all
pick-up and delivery clerks, fleet/lease clerks, ac-
counting management clerks, quality control em-
ployees, temporary employees, guards and super-
visors as defined in the Act, and all other employ-
ees.
The Union continues to be the exclusive representa-
tive under Section 9(a) of the Act.
B. Refusal to Bargain
About January 21, 1997, the Union requested the
Respondent to bargain and to furnish information and,
since about the same date, the Respondent has failed
and refused. We find that this failure and refusal con-
stitutes 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 January 21, 1997, to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit and to furnish the Union necessary and relevant
information, the Respondent has engaged in unfair
labor practices affecting 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,
3DETROIT AUTO AUCTION
2 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.’’
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement. We shall also order
the Respondent to furnish the Union the information
requested with the exception of employees’ social se-
curity numbers, financial information, information on
competitors, and information regarding nonunit tem-
porary employees and subcontracting.
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, Detroit Auto Auction, Inc., Taylor, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), 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 bargaining representative of the unit em-
ployees.
(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 full-time and regular part-time lot drivers,
service truck drivers, condition report writers,
check-in employees, sales lineup coordinators, de-
tailers, car washers, buffers, cleaning persons,
recon lot drivers, washer/dryer janitors, mechan-
ics, metal technicians, paint technicians, bodyshop
clerks, porters, parts clerks, trim technicians, pick-
up and delivery drivers, fleet/lease condition re-
port writers, fleet/lease lot drivers and crew chiefs
employed by the Employer at or out of its facili-
ties located at 20225 Eureka Road and 20911
Gladwin, Taylor, Michigan; but excluding all
pick-up and delivery clerks, fleet/lease clerks, ac-
counting management clerks, quality control em-
ployees, temporary employees, guards and super-
visors as defined in the Act, and all other employ-
ees.
(b) Furnish the Union the information that it re-
quested on January 21, 1997, with the exception of
employees’ social security numbers, financial informa-
tion, information on competitors, and information re-
garding nonunit temporary employees and subcontract-
ing.
(c) Within 14 days after service by the Region, post
at its facility in Taylor, Michigan, copies of the at-
tached notice marked ‘‘Appendix.’’2 Copies of the no-
tice, on forms provided by the Regional Director for
Region 7 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 June 18, 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.
Dated, Washington, D.C. October 31, 1997
llllllllllllllllll
William B. Gould IV, Chairman
llllllllllllllllll
Sarah M. Fox, Member
llllllllllllllllll
John E. Higgins, Jr., Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
4 DECISIONS OF THE 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 International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFL–CIO as
the exclusive representative of the employees in the
bargaining unit.
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:
All full-time and regular part-time lot drivers,
service truck drivers, condition report writers,
check-in employees, sales lineup coordinators, de-
tailers, car washers, buffers, cleaning persons,
recon lot drivers, washer/dryer janitors, mechan-
ics, metal technicians, paint technicians, bodyshop
clerks, porters, parts clerks, trim technicians, pick-
up and delivery drivers, fleet/lease condition re-
port writers, fleet/lease lot drivers and crew chiefs
employed by us at or out of our facilities located
at 20225 Eureka Road and 20911 Gladwin, Tay-
lor, Michigan; but excluding all pick-up and de-
livery clerks, fleet/lease clerks, accounting man-
agement clerks, quality control employees, tem-
porary employees, guards and supervisors as de-
fined in the Act, and all other employees.
WE WILL furnish the Union the information it re-
quested on January 21, 1997, with the exception of
employees’ social security numbers, financial informa-
tion and information on competitors, and information
regarding nonunit temporary employees and sub-
contracting.
DETROIT AUTO AUCTION, INC.