The Dai'el (USA), Inc.

THE DAI'E[ (USA). INC. The Dai'ei (USA), Inc. and Amalgamated Meat Cut- ters & Butcher Workmen of North America, AFL- CIO, Local Union No. 594. Case 37 CA-1526 July 2, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELI.O Upon a charge filed on March 6, 1979, by Amalga- mated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Local Union No. 594, herein called the Union, and duly served on The Dai'ei (USA), Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a com- plaint on March 12, 1979, against Respondent, alleg- ing that Respondent had engaged in and was engag- ing 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 proceed- ing. With respect to the unfair labor practices, the com- plaint alleges in substance that on January 11, 1979, following a Board election in Case 37-CA-241 1, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about February 1, 1979, and at all times there- after, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so; and that, commencing on or about February , 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to supply the Union with information about the composition of the bargaining unit and benefits presently received by employees in the bargaining unit. On March 20, 1979, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On March 30, 1979, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on April 6, 1979, the I Official notice is taken of the record in the representation proceeding, Case 37-RC-2411, 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 LTVElectrosystems. Inc.. 166 NLRB 938 (1967). enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); InterOype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967): Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the Gen- eral Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed an oppo- sition to the Motion for Summary Judgment. 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 opposition to the Motion for Summary Judgment, Respondent admits the request and refusal to bargain, and admits the request and refusal to supply the Union with cer- tain information concerning employees in the bar- gaining unit.2 However, Respondent asserts that the Union's certification is invalid because of unlawful participation of supervisors in the Union's organiza- tional campaign. In this regard, Respondent points out that in the underlying representation proceeding it was not afforded a hearing on its objections involv- ing the alleged supervisory participation, and it re- quests a hearing at this time. In his Motion for Sum- mary Judgment and memorandum in support. counsel for the General Counsel contends that Re- spondent raises no issues which were not considered in the underlying representation proceeding, that there exists no factual issue litigable before the Board, and that, therefore, no hearing is required. We agree with counsel for the General Counsel. Our review of the record herein, including the rec- ord in Case 37- RC-2411, indicates that on June 29, 1978, the Union filed a petition in which it sought to represent certain of Respondent's employees. On Au- gust 28, 1978, an election was conducted pursuant to a Stipulation for Certification Upon Consent Election which resulted in a vote of four to three in favor of the Union. Thereafter. Respondent filed timely objec- tions to conduct affecting the results of the election alleging impermissible supervisory sponsorship of the election petition. After an investigation of the objec- tions, the Regional Director for Region 20 issued a Report on Objections in which she recommended that 2 The information requested was a list of the names, addresses, classifica- tions, rates of pay, and number of dependents of each employee in the unit. a list of all present benefits received by the employees in the appropriate unit, and the share of the cost paid by employees for such benefits. It is well settled that the collective-bargaining representative is entitled to information relevant to its discharge of its collective-bargaining obligation. Verrol Divi- sion, Boeing Company, 182 NLRB 421 (1970). Certain information, specifi- cally wage and related information pertaining to employees in the bargain- ing unit, is presumptively relevant to the collective-bargaining representative's statutory duty to represent employees. N L.R.B. v. Curriss- Wright Corporation. Wright Aeronautical Division. 347 F.2d 61 (3d Cir 1965) 243 NLRB No. 48 275 DI)ECISIONS OF NATIONAL LABOR RELATIONS BOARD the objections be overruled in their entirety and that a certification of representative issue. Thereafter, Respondent filed exceptions to the Re- gional Director's report. On January 11, 1979, the Board, having considered the Regional Director's re- port and the Respondent's exceptions thereto, adopted the findings and conclusions of the Regional Director and certified the Union as the exclusive bar- gaining representative in the appropriate unit. In adopting the Regional Director's recommenda- tion that Respondent's objections be overruled in their entirety, the Board necessarily found that there were no substantial or material issues warranting a hearing.3 Respondent now raises those same issues raised in the representation case in an attempt to ob- tain a hearing herein. It is well settled however that there is no requirement that an evidentiary hearing be held where there are no substantial or material is- sues.4 Accordingly, it appears that Respondent is try- ing to relitigate issues previously litigated in the rep- resentation case.5 In the absence of newly discovered or previously unavailable evidence or special circumstances a re- spondent in a proceeding alleging a violation of Sec- tion 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior represen- tation proceeding.6 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation 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 re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceeding. 3 Prestolite Wire Division, Eltra Corporation, 225 NLRB (1976); Pointe Enterprises Inc., 223 NLRB 822 (1976). Janler Plastic Mold Corporation, 191 NLRB 162 (1971). In addition to alleging unlawful supervisory participation in the Union's campaign, Respondent also stated in its answer to the complaint that the unit is inappropriate. However, Respondent stated this only as part of its argument that the Union is not the lawful representative of Respondent's employees by virtue of the alleged supervisory intervention. Indeed, Respon- dent admitted that the unit is appropriate in another section of its answer and Respondent does not contend that the unit is inappropriate in its oppo- sition to the Motion for Summary Judgment. Accordingly, it does not appear that Respondent is now seeking to raise the appropriateness of the unit as an issue. In any event, the unit is one to which the parties stipulated, and Respon- dent did not raise the issue of appropriate unit in its objections to the elec- tion. Just as Respondent cannot relitigate the issue of supervisory participa- tion in the Union's organizational campaign, which was already litigated and resolved in the representation proceeding, it cannot now litigate the issue of appropriate unit which could have been litigated in the underlying represen- tation case. 6See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Sees. 102.67(f) and 102.69(c). Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FA('T 1. THE BUSINESS OF RESPONDENT The Dai'ei (USA), Inc., an Hawaii corporation, is engaged in the grocery retail sales business on the Island of Oahu. During the past calendar year, Re- spondent received gross revenues in excess of $500,000, and purchased and received goods valued in excess of $50,000 from points located outside the State of Hawaii. We find, on the basis of the foregoing, that Respon- dent 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. 11. TItE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Local Union No. 594, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All regular full-time and regular part-time em- ployees in the meat and fish departments in Re- spondent's Oahu store, including meatcutters, meat wrappers, and fish cutters, but excluding all office clerical employees, grocery, produce and liquor department employees, guards and/or watchmen, professional employees, and supervi- sors as defined in the Act. 2. The certification On August 28, 1978, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 20, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- 276 THE DAI'EI (USA), INC. lective-bargaining representative of the employees in said unit on January 11, 1979, and the Union contin- ues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about January 17, 1979, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit, and has requested that Respondent supply it with information about the composition of the bargaining unit and benefits pres- ently received by employees in the bargaining unit.7 Commencing on or about February 1, 1979, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bar- gain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Also commencing on or about February 1., 1979, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to supply the Union with the requested information, which is rel- evant to the Union's duties as bargaining representa- tive of the employees in said unit. Accordingly, we find that Respondent has, since February 1, 1979, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees and has refused to supply the Union with requested relevant informa- tion. By such refusals, 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 operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ' As indicated, supra, the Union requested Respondent to furnish it with a list of the names. addresses, classifications, rates of pay, and number of dependents of each employee in the unit. a list of all benefits received by the employees in the unit, and the share of the cost paid by employees for the benefits. ing 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. We shall further order that Respondent, upon re- quest, supply the Union with the requested informa- tion. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc.. 136 NLRB 785 (1962); Commerce Company d/b/la Lamar Hotel, 140 NRLB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Con- struction 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 I. The Dai'ei (USA), Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Meat Cutters & Butcher Work- men of North America, AFL-CIO, Local Union No. 594, is a labor organization within the meaning of Section 2(5) of the Act. 3. All regular full-time and regular part-time em- ployees in the meat and fish departments in Respon- dent's Oahu store, including meatcutters, meat wrap- pers, and fish cutters, but excluding all office clerical employees, grocery, produce and liquor department employees, guards and/or watchmen, professional employees, and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since January 11, 1979, the above-named labor organization has been and now is the certified and exclusive 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 February , 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- 277 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent in the appropriate unit, and to supply it with requested information, Respondent 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 refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering 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)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing 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 Rela- tions Board hereby orders that the Respondent, The Dai'ei (USA), Inc., Oahu, Hawaii, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Amalgamated Meat Cut- ters & Butcher Workmen of North America, AFL CIO, Local Union No. 594, as the exclusive bargain- ing representative of its employees in the following appropriate unit: All regular full-time and regular part-time em- ployees in the meat and fish departments in Re- spondent's Oahu store, including meatcutters, meat wrappers, and fish cutters, but excluding all office clerical employees, grocery, produce and liquor department employees, guards and/or watchmen, professional employees, and supervi- sors as defined in the Act. (b) Refusing to furnish the Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Local Union No. 594, with information pertaining to the unit composition and benefits cur- rently received by members of the unit. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise 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 understand- ing is reached, embody such understanding in a signed agreement. (b) Upon request, bargain collectively with the above-named labor organization by furnishing the said labor organization with the information re- quested pertaining to unit employees and their bene- fits. (c) Post at the Oahu store copies of the attached notice marked "Appendix. "s Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order. what steps have been taken to comply herewith. g 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing 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 Amal- gamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Local Union No. 594, as the exclusive representative of the em- ployees in the bargaining unit described below. WE WILL NOT refuse to furnish the above- named Union with information necessary and relevant to the Union's performance of its collec- tive-bargaining functions. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees 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 representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is 278 THE [)AI'EI (USA), INC. reached, embody such understanding in a signed agreement. The bargaining unit is: All regular full-time and regular part-time em- ployees in the meat and fish departments in the Oahu store, including meatcutters. meat wrappers, and fish cutters, but excluding all office clerical employees, grocery, produce and liquor department employees, guards and/or watchmen, professional employees, and super- visors as defined in the Act. WE WILL furnish the Union with information concerning the composition of the unit and bene- fits currently received by members of the unit, as requested. THI DAI'EI (USA), INC. 279