Windsor Woodworking, Inc.

WINDSOR WOODWORKING, INC. 289 Windsor Woodworking, Inc. and Local Lodge No. 1513, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 18- CA-6469 May 5, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on November 15, 1979, by Local Lodge No. 1513, International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, and duly served on Wind- sor Woodworking, Inc., herein called Respondent, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for Region 18, issued a complaint and notice of hearing on De- cember 7, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices 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, complaint, and notice of hearing before an administrative law judge were duly served on the parties to this pro- ceeding. With respect to the unfair labor practices, the complaint alleges in substance that on October 15, 1979, following a Board election in Case 18-RC- 12121, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about October 19, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to rec- ognize, to meet with, to bargain collectively with the Union as the exclusive bargaining representa- tive, and to supply necessary and relevant informa- tion to the Union, although the Union has request- ed and is requesting it do so. On December 17, 1979, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint, and raising affirmative de- fenses. On January 11, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 23, 1980, the Board issued an order transferring the I Official notice is taken of the record in the representation proceed- ing, Case 18-RC-12121, as the term "record" is defined in Sees. 102.68 and 102.69(f) of the Board's Rules and Regulations, Series 8, as amended SeeLI'V Eleto'ro.,'ptems, Inc., 166 NLRB 938 (1967), enfd 388 F.2d 683 (4th Cir. 1968); Golden .4Age Beverage Co, 167 NLRB 151 (1967), enfd 415 F.2d 26 (5th Cir 1969); Iniertype Co . Pen'llo, 269 FSupp. 573 (DC, Va. 1957); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec 9(d) of the NLRA, as amended 249 NLRB No. 37 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 did not file a response to the Notice To Show Cause by the time specified, and therefore the alle- gations in the Motion for Summary Judgment stand uncontroverted. 2 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 Respondent admits that the unit is appropriate, and that a secret-ballot election was conducted on December 22, 1978, among the employees in the appropriate unit described in the complaint. Re- spondent further admits that on August 15, 1979, certain determinative challenged ballots were opened and counted and that a second revised tally of ballots issued, but it denies that any votes were cast in favor of or against the Union as "the Union" is defined in the complaint, or that the tally showed any votes cast in favor of or against "the Union."3 Respondent also admits that on August 20, 1979, it mailed to the Board a document dated August 20, 1979, in which Respondent objected to conduct affecting the results of the election held on December 22, 1978; that on September 6, 1979, the Regional Director for Region 18 issued a report and recommendations on objections to conduct af- fecting the results of the election finding that the objections were untimely filed and recommending that they be overruled; that on September 18, 1979, Respondent filed exceptions to the Regional Direc- tor's report and recommendations on objections to conduct affecting the results of the election; and that on October 15, 1979, the Board issued a Sup- plemental Decision and Certification of Representa- 2 The Board's Notice To Show Cause notified the parties that cause be shown in writing on or before February 6, 1980. Respondent filed a "Re- sistance To Motion For Summary Judgment." dated February 25. 1980. which was received by the Board on February 27, 1980 ' We agree with the General Counsel that the Charging Party Union and the certified bargaining agent are one and the same entity and v grant his request to delete the reference to District No. 118 fiom the name of the Union as set frth in the complaint The Charging Party's requests fir information from Respondent in letters dated October 19 and October 31 1979, are in the name of Local Lodge No 1513. Internation al Association of Machinists and Aerospace Workers AFL-CIO, and are printed on sltationery which also names District l.odge No 118 The let- terhead further indicates that Local Lodge No. 1513 is one f four local lodges affiliated with District Lodge No. 118. In addition, both the peti lion for election and the unfair labor practice charge il this proceeding are signed by he same individual in his capacity as the grand lodge rep- resentative. In light of the abose, including Rspoldcnl's failure to re spond to the Notlice lo Show Cause ithin the tinle specified therein. - find that the certified bargainingg agent and the Charging IParty herein ,ii one anid the same entit? WINDSOR WOODWORKING, INC. 289 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive, adopting the Regional Director's findings and recommendations and overruling Respondent's ex- ceptions. Respondent also denies that the Union has been requesting Respondent to recognize, to meet, and to bargain with the Union, and that the Union has been requesting certain information.4 However, as noted supra, attached to the Motion for Summary Judgment are copies of letters from the Union to Respondent dated October 19, 1979, and October 31, 1979, requesting information, and a letter from the Union dated November 28, 1979, requesting Respondent to meet and to bargain. In a letter to the Regional Director, dated November 26, 1979, Respondent "denies that all of the information re- quested by the Union is material or necessary to enable the Union to negotiate," thereby admitting that the information was indeed requested. Al- though Respondent asserts that the information had not been requested "in any proper manner," Re- spondent does not set forth the reasons why the re- quests were improper. Respondent denies that it is refusing to recog- nize, to meet, or to bargain with the Union, or that it is refusing to furnish to the Union the informa- tion requested. However, Respondent does not allege that it has responded to the Union's requests for recognition and bargaining or to the Union's re- quests for information. Further, Respondent does not allege that it has been or is willing to recog- nize, to meet, or to bargain with the Union, or that it has furnished or is willing to furnish the Union the requested information. Respondent also denies the conclusionary allegations in the complaint. However, these are legal conclusions flowing from and based on the facts established by the pleadings and by the documentary evidence attached thereto. Respondent raises several affirmative defenses in its answer. Thus, Respondent alleges that the Board was in error when it found that Respond- ent's objections to the election were untimely filed; when it failed to consider "previously unavailable evidence" that the number of bargaining unit em- ployees had decreased and would be decreased fur- ther; and when it found that certain laid-off em- ployees had a reasonable expectation of being re- called to work. However, each affirmative defense has heretofore been raised in the underlying repre- 4 The information requested by the Union is as follows: Names of all employees in the bargaining unit, including dates of hire, rates of pay, ages, and sex; classification and job description of such em- ployees; a list and description of all fringe benefits and how they are computed; copies of all benefit plans, including cost per hour per employ- ee for such benefit and benefit plan; shift schedules and hours of work: method of computing incentive, bonuses, profit-sharing plans, and pen- sion plans; all information and data concerning safety programs and safety regulations; and a copy of all existing plant rules and regulations. sentation case, Case 18--RC-12121, and already has been considered and rejected by the Board. 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. All issues raised by Respondent in this proceed- ing, except for the request for information, were or could have been litigated in the prior representa- tion proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the underlying representation proceeding. Final- ly, although Respondent denies that the informa- tion is necessary to the collective-bargaining proc- ess, it is clear that the information requested relates to employees' names, classifications, benefits, and the like and is presumptively relevant and neces- sary for the Union to be able to bargain intelligent- ly and to represent adequately the employees.6 It is clear, based on the pleadings and exhibits, that Re- spondent is refusing to recognize, to meet, to bar- gain, and/or to furnish the necessary and relevant information in order to contest the Union's certifi- cation. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: Findings of Fact I. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, an Iowa corporation, and has been engaged in the manufacture, sale, and distribution of window-units and frames in West Des Moines, Iowa. Respondent in the normal course and con- duct of its business purchased and caused to be transported and delivered to its Iowa facility goods and materials valued in excess of $50,000, which were transported and delivered to said facility in West Des Moines, Iowa, from points outside the State of Iowa. 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 ' See Pittsburgh Pluie Govs C, . X'L.R.B., 313 U S 14h. 162 (l941): Rules and Rcgulations of the Board. Sees 102.67(f1 and 102.6h(c). " Borden, Inc, Borden Chemian l Doivol. 235 NLRII 982 (19781 WINDSOR WOODWORKING, INC. 291 that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Local Lodge No. 1513, 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, truck drivers, shipping and receiving employees and janitor employees employed by the Respondent at its West Des Moines, Iowa facility, excluding office clerical employees, professional employ- ees, sales employees, and guards and supervi- sors as defined in the Act, as amended. 2. The certification On December 22, 1978, a majority of the em- ployees of Respondent in said unit, in a secret- ballot election conducted under the supervision of the Regional Director for Region 18, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining repre- sentative of the employees in said unit on October 15, 1979, and the Union continues to be such exclu- sive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about October 19, 1979, 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 information relevant to, and neces- sary for, the purpose of collective bargaining. Commencing on or about October 19, 1979, and continuing at all times thereafter to date, Respond- ent has refused, and continues to refuse, to recog- nize and to bargain with the Union as the exclusive representative for collective bargaining of all em- ployees in said unit, and to provide it with that in- formation. Accordingly, we find that the Respondent has, since October 19, 1979, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and has refused to furnish it with information relevant and necessary for the purpose of collective bargaining as requested and that, by such refusal, Respondent has engaged in and is en- gaging 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, and to provide the Union, upon request. with information relevant and necessary for collec- tive bargaining. In order to insure 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 alp- propriate unit. See Mar-Jac Poultry Company. Inc.. 136 NLRB 785 (1962); Commerce Company d/b/u 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. Windsor Woodworking. Inc., is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Local Lodge No. 1513, International Associ- ation of Machinists and Aerospace Workers, AFL WINDSOR WOODWORKING, INC 291 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CIO, is a labor organization within the meaning of Section 2(5) of e Act. 3. All full-time and regular part-time production and maintenance employees, truckdrivers, shipping and receiving employees, and janitor employees employed by Respondent at its West Des Moines, Iowa, facility, excluding office clerical employees, professional employees, sales employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since October 15, 1979, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about October 19, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, and to pro- vide it with requested information relevant and necessary for the purpose of collective bargaining, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) 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, Windsor Woodworking, Inc., West Des Moines Iowa, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, and other terms and conditions of employment with Local Lodge No. 1513, Inter- national Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of its employees in the following ap- propriate unit: All full-time and regular part-time production and maintenance employees, truck drivers, shipping and receiving employees and janitor employees employed by the Respondent at its West Des Moines, Iowa facility, excluding office clerical employees, professional employ- ees, sales employees, and guards and supervi- sors as defined in the Act. (b) Refusing to provide to the above-named Union, upon request, information relevant and nec- essary for the purpose of collective bargaining. (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, and provide the Union with the names of all employees in the bar- gaining unit, including dates of hire, rates of pay, ages, sex, classifications and job descriptions, a list of fringe benefit plans, including the cost per hour per employee for such fringe benefit and benefit plan, shift schedules and hours of work, method of computing incentive, bonuses, profit-sharing plans, and pension plans, all information and data con- cerning safety programs and safety regulations, and copies of all existing plant rules and regulations, and any other information requested by the Union which is relevant and necessary for the purpose of collective bargaining. (b) Post at its West Des Moines, Iowa, facility 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 insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this I 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 I'ursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." WINDSOR WOODWORKING, INC. 293 Order, what steps have been taken to comply here- with. 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 Local Lodge No. 1513, 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 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- 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, truck driv- ers, shipping and receiving employees and janitor employees employed by the Employ- er at its West Des Moines, Iowa facility, ex- cluding office clerical employees, profession- al employees, sales employees, and guards and supervisors as defined in the Act. WE WILL provide to the Union, as request- ed, the names of all employees in the bargain- ing unit, including dates of hire, rates of pay, ages, sex, classifications and job descriptions, a list of fringe benefits, copies of benefit plans, including the cost per hour per employee for such fringe benefits and benefit plans, shift schedules and hours of work, method of com- puting incentive, bonuses, profit-sharing plans, and pension plans, all information and data concerning safety programs and safety regula- tions, and copies of all existing plant rules and regulations, and any other information request- ed by the Union which is relevant and neces- sary for the purpose of collective bargaining. WINDSOR WOODWORKING, INC. WINDSOR WOODWORKING, INC. 293 .