Garlock Equipment Company

National Labor Relations Board - Board Decisions

Aug 24, 1982

263 N.L.R.B. 684 (N.L.R.B. 1982)

)DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Garlock Equipment Company and District Lodge
No. 77, International Association of Machinists
and Aerospace Workers, AFL-CIO. Case 18-
CA-6846
August 24, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on September 8, 1980, by
District Lodge No. 77, International Association of
Machinists and Aerospace Workers, AFL-CIO,
herein called the Union, and duly served on Gar-
lock Equipment Company, herein called Respond-
ent, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 18, issued a complaint on October 17, 1980,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of
the National Labor Relations Act, as amended.
Copies of the charge and complaint and notice of
hearing before an administrative law judge were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on May 15,
1980, following a Board election in Case 18-RC-
12623, Garlock Employees Committee (GEC) was
duly certified as the exclusive collective-bargaining
representative of Respondent's employees in the
unit found appropriate; that on July 11, 1980, pur-
suant to petitions filed in Cases 28-AC-38 and 18-
AC-40, the Regional Director amended the Certifi-
cation of Representative by substituting the Union
in place of GEC;' and that, commencing on or
about July 25, 1980, and at all times thereafter, Re-
spondent has refused, and continues to date to
refuse, to bargain collectively with the Union as
the exclusive bargaining representative, and to fur-
nish the Union relevant bargaining information, al-
though the Union has requested and is requesting it
to do so. On October 30, 1980, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On November 21, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December 4,
l Official notice is taken ol the record in the representation proceed-
ing, Cases 18-RC-12623, 18-AC--38, and 18-AC-40. as the term
"record" is defined in Sees. 102.68 and 102.69(g) of the Board's Rules
and Regulations, Series 8, as amended See LTV Electrovsytems. Inc., 166
NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir 1968); Golden Age Bever-
age Co., 167 NI.RB 151 (1967), enfd. 415 F-.2d 26 (5th Cir 1969): Inter-
type Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follett Corp., 164
NLRB 378 (1967), enfd 397 F.2d 91 (7th Cir 1968); Sec. 9(d) of the
NLRA, as amended.
263 NLRB No. 96
1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and in its response
to the Notice To Show Cause, Respondent admits
its refusal to bargain and to provide the requested
information, but contends that it was not required
to do either because the Union was not properly
certified. In this regard Respondent argues that the
amendment to GEC's certification so as to substi-
tute the Union for GEC as the exclusive repesenta-
tive was improper, and further contends that the
Regional Director erred by not holding a hearing
on the petitions to amend the certification and that
it is now entitled to a hearing.
Review of the record herein, including the
record in Cases 18-RC-12623, 18-AC-38, and 18-
AC-40, discloses that, pursuant to a Stipulation for
Certification Upon Consent Election, an election
was held on May 8, 1980, which resulted in 49
votes for and 4 votes against GEC, which was
duly certified. Respondent did not and does not
contest the validity of this certification. On July 11,
1980, based on two petitions to amend the certifica-
tion and a showing, in support of those petitions,
that by a secret-ballot election among all the em-
ployees in the certified bargaining unit the employ-
ees voted, 59 to 3, to have GEC affiliate with the
Union, the Regional Director issued his Decision
and Amendment of Certification in which he or-
dered that the certification issued in Case 18-RC-
12623 be amended to substitute the Union for GEC
as the certified exclusive representative of the em-
ployees in the appropriate bargaining unit.
On July 23, 1980, Respondent filed with the
Board a timely request for review of the Regional
Director's Decision and Amendment of Certifica-
tion in which it argued that the petitions for
amendment of certification raised a question con-
cerning representation that could be resolved only
through a Board election and that, in the alterna-
tive, the non-Board affiliation election was not car-
ried out with proper procedural safeguards to
ensure due process and a truly representative
result. On August 8, 1980, the Board denied the re-
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GARLOCK EQUIPMENT COMPANY
quest for review as raising no substantial issues
warranting review.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.2
All issues raised by Respondent in connection
with the validity of the amendment of certification
were or could have been litigated in the prior rep-
resentation proceeding, and Respondent does not
offer to adduce at a hearing any newly discovered
or previously unavailable evidence, nor does it
allege that any special circumstances exist herein
which would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding with regard to the refusal-to-
bargain allegation. 3 Accordingly, we grant the
Motion for Summary Judgment with respect there-
to.
In addition to its refusal to bargain, Respondent
also refused to provide information requested by
the Union which the Union deemed necessary and
relevant for the purpose of collective bargaining. 4
The Board has long held with court approval that
the collective-bargaining duties imposed on an em-
ployer by Section 8(a)(5) of the Act include the ob-
ligation to provide its employees' bargaining repre-
sentative with information which is relevant and
necessary to collective bargaining. 5 We find that
the information requested by the Union clearly
constitutes information which has a direct bearing
on the negotiation of wages, hours, and other terms
and conditions of employment. As the information
sought clearly encompasses matters which are man-
datory subjects of bargaining, it is precisely that
type of information which employers are required
to provide to enable unions to bargain intelligently
and fulfill their obligations as the selected repre-
I See Pittsburgh Plate Glass Ca v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
' In his Decision and Amendment of Certification in Casea 18-AC-38
and 18-AC--40, the Regional Director relied on Amoco Production Com-
poany, 239 NLRB 1195 (1979), and Seattle-First National Bank, 241 NLRB
751 (1979), for the proposition that the affiliation vote taken here was an
internal union matter. As the affiliation vote was open to all employees in
the bargaining unit, and as the due-process requirements were satisfied,
we need not rely on Amoco or Seattle in reaffirming the Regional Direc-
tor's finding that the affiliation vote was valid for the purpose of making
the Union the collective-bargaining representative.
4 The Union sought information on the employees' seniority, and ages,
classifications, and rates of pay, information on work rules, incentive sys-
tems and subcontracting, and various information on the employees' pen-
sion, profit-sharing and insurance plans.
a N.LRB. v. Acme Industrial Ca, 385 U.S. 432, 435-436 (1967).
sentative of the employer's employees. 6 We there-
fore find that, by its refusal to provide the informa-
tion which was requested by the Union, Respond-
ent has violated Section 8(a)(1) and (5) of the Act.
Accordingly, we grant the Motion for Summary
Judgment on the refusal-to-provide-information al-
legation.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Minnesota corporation with an
office and place of business in Plymouth, Minneso-
ta, is engaged in the manufacture and nonretail sale
and distribution of roofing equipment and related
products. During the 12-month period ending De-
cember 31, 1979, a representative period, Respond-
ent, in the course and conduct of its business oper-
ations, sold and shipped from its St. Louis Park,
Minnesota, facility, relocated in December 1979 to
Plymouth, Minnesota, products, goods, and materi-
als valued in excess of $50,000 directly to points
outside the State of Minnesota. During the same
period, Respondent purchased and received prod-
ucts, goods, and materials valued in excess of
$50,000 directly from points outside the State of
Minnesota.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
District Lodge No. 77, International Association
of Machinists and Aerospace Workers, AFL-CIO,
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time production
and maintenance employees employed at Re-
spondent's Plymouth, Minnesota facility; ex-
8 See Dynamic Machine Cao., 221 NLRB 1140 (1975), and cases cited
therein at fn. 14.
685
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cluding all office clerical employees, manageri-
al employees, professional employees, engi-
neering department employees, sales employ-
ees, guards and supervisors as defined in the
Act.
2. The certification
On May 8, 1980, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 18, designated GEC as their
representative for the purpose of collective bar-
gaining with Respondent.
GEC was certified as the collective-bargaining
representative of the employees in said unit on
May 15, 1980. The Union was duly substituted as
the certified collective-bargaining representative on
July 11, 1980, and the Union continues to be such
exclusive representative within the meaning of Sec-
tion 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about July 22, 1980, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit, and to
furnish it with relevant and necessary bargaining
information concerning the employees in the
above-described unit. Commencing on or about
July 25, 1980, and continuing at all times thereafter
to date, Respondent has refused, and continues to
refuse, to recognize and bargain with the Union as
the exclusive representative for collective bargain-
ing of all employees in said unit, and to furnish the
Union with relevant and necessary bargaining in-
formation concerning said employees.
Accordingly, we find that Respondent has, since
July 25, 1980, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and refused to furnish the Union with
relevant and necessary bargaining information, and
that, by such refusal, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that 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 that it cease and desist therefrom, and,
upon request, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate unit and, if an understanding is
reached, embody such understanding in a signed
agreement.
In order to ensure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company, Inc,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Garlock Equipment Company is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. District Lodge No. 77, International Associ-
ation of Machinists and Aerospace Workers, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All full-time and regular part-time production
and maintenance employees employed at Respond-
ent's Plymouth, Minnesota facility; excluding all
office clerical employees, managerial employees,
professional employees, engineering department
employees, sales employees, guards and supervisors
as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since July 11, 1980, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about July 25, 1980, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
686
GARLOCK EQUIPMENT COMPANY
Respondent in the appropriate unit, and to furnish
the Union with relevant and necessary bargaining
information concerning said employees, Respond-
ent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of
the Act.
6. By the aforesaid conduct, Respondent has in-
terfered with, restrained, and coerced, and is inter-
fering with, restraining, and coercing, employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Garlock Equipment Company, Plymouth, Minneso-
ta, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with District Lodge No.
77, International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All full-time and regular part-time production
and maintenance employees employed at Re-
spondent's Plymouth, Minnesota facility; ex-
cluding all office clerical employees, manageri-
al employees, professional employees, engi-
neering department employees, sales employ-
ees, guards and supervisors as defined in the
Act.
(b) Refusing to furnish the Union with relevant
and necessary bargaining information requested by
it concerning the employees in the above-described
unit.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Upon request, furnish the above-named labor
organization with relevant and necessary bargain-
ing information concerning the employees in the
appropriate unit.
(c) Post at its plant in Plymouth, Minnesota,
copies of the attached notice marked "Appendix." 7
Copies of said notice, on forms provided by the
Regional Director for Region 18, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 18,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
7 In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Ellforcing an
Order 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
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with District Lodge No. 77, International As-
sociation of Machinists and Aerospace Work-
ers, AFL-CIO, as the exclusive representative
of the employees in the bargaining unit de-
scribed below.
WE WILI. NOT refuse to provide the above-
named labor organization with relevant and
necessary information requested by it concern-
ing the employees in the appropriate unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
687
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time produc-
tion and maintenance employees employed
at our Plymouth, Minnesota facility; exclud-
ing all office clerical employees, managerial
employees, professional employees, engi-
neering department employees, sales em-
ployees, guards and supervisors as defined in
the Act.
WE WILL, upon request, provide the above-
named labor organization with relevant and
necessary bargaining information concerning
the employees in the appropriate unit.
GARLOCK EQUIPMENT COMPANY
688