Filmlab Services, Inc.

FILMLAB SERVICES, INC. Filmlab Services, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 416. Case 8-CA-10998 September 26, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon a charge filed on May 6, 1977, by Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local 416, herein called the Union, and duly served on Filmlab Services, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 8, issued a complaint on June 1, 1977, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce 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 Adminis- trative 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 March 25, 1977, following a Board election in Case 8-RC- 10657, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; I and that, commencing on or about May 3, 1977, and at all times thereafter, Respondent has refused to provide data relevant to the Union's function as the exclusive bargaining representative of Respondent's employees in the appropriate unit, although the Union has requested and is requesting it to do so; and that commencing on or about May 3, 1977, and at all times thereafter, Respondent has refused, and con- tinues 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. On June 9, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 8, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 18, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not i Official notice is taken of the record in the representation proceeding, Case 8 RC 10657. as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Elecrrrovtem.v, Inc., 166 Nl RB 938 (1967), enfd 388 F.2d 683 (C.A. 4. 232 NLRB No. 54 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 National Labor Relations Board has delbalecd its authority 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 response to the Notice To Show Cause, Respondent basically con- tends that the certification of the Union in the underlying representation case is invalid on the basis of its objections therein and that the Regional Director denied it due process by not directing a hearing thereon and by denying its request that evidentiary items compiled during the investigation of the objections be made a part of the record. Our review of the record herein, including the record in Case 8-RC-10657, reveals that pursuant to a Stipulation for Certification Upon Consent Elec- tion, an election was conducted on December 2, 1976, and resulted in a 16-to-13 vote in favor of the Union with I challenged ballot. Respondent filed timely objections to conduct affecting the results of the election. The objections alleged in substance that the Union made numerous false statements and misrepresentations to the effect that Respondent had entered into unlawful agreements with employees to induce them to vote against the Union in the 1974 and 1976 elections and in some cases had reneged on its agreements. In addition, Respondent included a catchall objection. In support of that objection, it presented four items of Petitioner's campaign litera- ture which allegedly conveyed the impression that the United States Government endorsed Petitioner's organizing effort and stated that Respondent had violated the law. On January 13, 1977, the Regional Director issued his Report on Objections in which he found that the alleged misrepresentations were not substantial and material and that Respondent had adequate opportunity to reply to them. The Regional Director also found that Respondent's objections raised no substantial or material issues of either fact or law with respect to the election and consequently were without merit. Accordingly, he recommended that the objections be overruled and a certification of representative be issued the Union. Respondent filed timely exceptions to the Regional Director's Report on Objections reiterating its objections and request for a hearing, and asserting 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5. 1969): Inrerrype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967): Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968). Sec. 9(d) of the NLRA, as amended. 339 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the record should include all evidentiary items compiled by or submitted to the Regional Director during the course of the investigation of Respon- dent's objections. On March 25, 1977, the Board issued its Decision and Certification of Representa- tive,2 finding that Respondent's exceptions raised no material factual or legal issues warranting a reversal of the Regional Director's recommendations or the holding of a hearing. Respondent's request that evidentiary items be designated a part of the record was also denied as lacking in merit. On June 1, 1977, the complaint in the instant case was issued alleging that Respondent has at all times material refused to recognize and bargain collectively with the Union as the exclusive bargaining represen- tative of all the employees in the appropriate unit; refused to meet, negotiate, and discuss with the Union matters concerning rates of pay, wages, hours of employment and other terms and conditions of employment; and refused to grant the Union's request for information relating to wages and fringe benefits of all employees in the appropriate unit. On June 9, 1977, Respondent filed its answer, admitting that it refused to recognize and bargain with the Union as the exclusive bargaining representative of all its employees in the appropriate unit, but denying that it refused to provide information relating to wages and fringe benefits of said employees, and denying that it committed any unfair labor practices. Respondent also filed a request for production of the documents. This request was denied by the Regional Director. On June 4, 1977, Respondent filed with the Division of Judges a motion to compel production of the documents and a motion to supplement the record before the Administrative Law Judge. The General Counsel filed a memorandum in opposition and Respondent filed a reply brief. On July 11, 1977, an Administrative Law Judge denied Respondent's motion. In its response to the Notice To Show Cause, Respondent reasserts its contention that the Regional Director denied it due process by refusing to require a hearing on the issues raised by its objections to 2 Not reported in bound volumes of Board Decisions. 3 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 4 Respondent's motion to supplement the record is denied as lacking in merit. With respect to its contention that it was denied due process because no hearing was held on its objections, we considered that contention in the underlying representation case and it may not be reconsidered here. Thus, after review of the Regional Director's report and the record in light of Respondent's exceptions and brief, we issued a Decision and Certification of Representative in which we found, inter alia, that Respondent had not raised any substantial or material issues warranting a hearing. Since it failed to raise any such issues in the representation case, it has not been denied due process. CSC Oil Company, 220 NLRB 19, 20 (1975). ' The General Counsel alleges that Respondent refused to provide information requested by the Union relating to wages and fringe benefits. However, the Union's letter of April 29, 1977, the only evidence pointed to by General Counsel in support of this assertion, makes no mention of fringe conduct affecting the election. It reasserts its motion to supplement the record, contending that the Administrative Law Judge's denial of the motion prejudiced it in the preparation of its brief to show cause why summary judgment should not be granted. Finally, Respondent contends that the evidence submitted by the General Counsel in support of the Motion for Summary Judgment conflicts with the complaint, warranting the denial of the General Counsel's motion. In this connection, Respondent points to paragraph 10(b) of the complaint which alleges that Respondent refuses to furnish data requested by the Union relating to wages and fringe benefits of unit employees. Respondent then points to the General Counsel's Exhibit I which is the Union's request, by letter, for a list of unit employ- ees, their classifications, and their hourly wage rates. No request for data on fringe benefits is made in the letter. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceedings All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, 4 and Respondent does not offer to adduce at a hearing any newly discov- ered 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. We shall, accordingly, grant the Motion for Summary Judgment. 5 On the basis of the entire record, the Board makes the following: benefits. Accordingly, we find that no evidence has been presented that the Union requested information relating to fringe benefits. Our finding, however, does not require the denial of the General Counsel's Motwon for Summary Judgment. The Union's letter requests information relating to wages and classifications of unit employees, for the purpose of collective bargaining. Respondent, in its May 3, 1977. letter, acknowledges the Union's request for "information for the purposes of commencement of collective bargaining" and refuses to commence bargaining on the grounds that the election and certification of the Union are invalid. We find that Respondent's denial of the request to bargain is also a refusal to furnish information relevant to collective bargaining. Since the refusal of informa- tion is based solely on Respondent's contention that the Union's certifica- tion is invalid, it is clear that Respondent would have refused information relating to fringe benefits, or any other data relevant to collective bargaining, had the Union requested it. There are therefore no material factual or legal issues warranting the denial of the General Counsel's Motion for Summary Judgment. 340 FILMLAB SERVICES, INC. FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, an Ohio corporation, located at 4117 Prospect Avenue, Cleveland, Ohio, is engaged in the development and duplication of 16 millimeter film. During the 12-month period immediately preceding the issuance of the complaint and notice of hearing in this proceeding, Respondent shipped goods valued in excess of $50,000 from its Cleveland, Ohio, facility directly to points located outside the State of Ohio. We find, on the basis of the foregoing, that Respondent 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. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local 416, is a labor organization within the meaning of Section 2(5) of the Act. III. 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 full-time and regular part-time production and maintenance employees including editors (negative cutting and matching workers), lead printers, chemists, timers, shipping and receiving employees, inspectors and sensitometric control employees, but excluding all office clerical em- ployees, customer service employees, guards and supervisors as defined in the Act. 2. The certification On December 2, 1976, 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 8 designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on March 25, 1977, and the Union continues 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 April 29, 1977, 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 em- ployees in the above-described unit. Commencing on or about May 3, 1977, 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 bargaining of all employees in said unit. Accordingly, we find that Respondent has, since May 3, 1977, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, 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. C. The Request for Data; Respondent's Refusal Commencing on or about April 29, 1977, and at all times thereafter, the Union has requested Respon- dent to provide it with data relevant to its function as the exclusive bargaining representative of all the employees in the above-described unit. Commencing on or about May 3, 1977, and continuing at all times thereafter to date, Respondent has refused. and continues to refuse, to provide the Union with the aforesaid data. Accordingly, we find that Respondent has, since May 3, 1977, and at all times thereafter, refused to provide the Union with data relevant to its function as the exclusive representative of the employees in the appropriate unit, 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 (I) 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 opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. 341 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. We shall also order it to provide the requested information. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate 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 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Filmlab Services, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 416, 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 including editors (nega- tive cutting and matching workers), shipping and receiving employees, inspectors and sensitometric control employees, but excluding all office clerical employees, customer service employees, salesmen and professional 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 March 25, 1977, 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 May 3, 1977, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By refusing on or about May 3, 1977, and at all times thereafter, to furnish the Union with data relevant to the above-named labor organization's performance of its function as the exclusive bargain- ing representative of all employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By the aforesaid refusals to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 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. 8. 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 Relations Board hereby orders that the Respondent, Filmlab Services, Inc., Cleveland, Ohio, 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 International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 416, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time production and maintenance employees including editors (negative cutting and matching workers), lead printers, chemists, timers, shipping and receiving employees, but excluding all office clerical em- ployees, customer service employees, salesmen and professional employees, guards and supervi- sors as defined in the Act. (b) Refusing to furnish the above-named labor organization with data relevant to the performance of its function as the exclusive bargaining representa- tive of all employees in the aforesaid appropriate 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: 342 FILMLAB SERVICES, INC. (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 under- standing is reached, embody such understanding in a signed agreement. (b) Upon request provide data relevant to the performance of the above-named labor organiza- tion's function as the exclusive bargaining represen- tative of all employees in the aforesaid appropriate unit. (c) Post at its Cleveland, Ohio, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respon- dent's representatives, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily 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 8 in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 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 Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 416, as the exclusive representative of the employ- ees in the bargaining unit described below. WE WILL NOT refuse to provide data relevant to the above-named Union's function as to exclusive bargaining representative of all employees in the bargaining unit described below. 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 described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All full-time and regular part-time produc- tion and maintenance employees including editors (negative cutting and matching work- ers), lead printers, chemists, timers, shipping and receiving employees, inspectors and sensitometric control employees, but exclud- ing all office clerical employees, customer service employees, salesmen and profession- al employees, guards and supervisors as defined in the Act. WE WILL, upon request, provide data relevant to the above-named Union's function as the exclusive bargaining representative of all the employees in the bargaining unit described above. FILMLAB SERVICES, INC. 343