J-Wood/A Tappan Division

J-WOOD/A TAPPAN DIVISION J-Wood/A Tappan Division and Amalgamated Clothing and Textile Workers Union, AFL- CIO-CLC. Case 6-CA-14590 February 19, 1982 BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN DECISION AND ORDER Upon a charge filed on May 22, 1981, by Amal- gamated Clothing and Textile Workers Union, AFL-CIO-CLC, herein called the Union, and duly served on J-Wood/A Tappan Division, herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 6, issued a complaint on June 17, 1981, 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 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 March 24, 1981, following a Board election in Case 6-RC- 8788, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about May 5, 1981, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining repre- sentative, although the Union has requested and is requesting it to do so. On June 26, 1981, Respond- ent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On September 8, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on September 14, 1981, 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. On Septem- ber 28, 1981, Respondent filed a response to the Notice To Show Cause. i Official notice is taken of the record in the representation proceed- ing, Case 6-RC-8788, as the term "record" is defined in Secs. 102 h68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended See LTV Elecrosystems. Inc., 166 NLRB 938 (1967), enfd 388 F2d 683 (4th Cir. 1968). Golden Age Beverage Co.. 167 NLRB 151 (1967), enfd 415 F.2d 26 (5th Cir. 1969); Inlerfype Co. 5 Pene(llo, 269 F Supp 571 (D.C Va. 1967); Folletl Corp., 164 NLRB H 37 (1967), enfd 397 F 2d 91 (7th Cir 1968); Sec 9(d) of the NLRA. as amended 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 The complaint alleges violations of Section 8(a)(1) and (5) of the Act by Respondent's refusal to bargain with the Union, since May 5, 1981, on all issues affecting the wages, hours, and other terms and conditions of employment of the em- ployees in the unit found appropriate, and by its re- fusal to furnish information requested by the Union for the purposes of bargaining. In its answer to the complaint and response to the Notice To Show Cause, Respondent admits the refusal to bargain and the refusal to provide the re- quested information but contends that it was not required to do either because the Union's certifica- tion in the underlying representation case is invalid. Thus, Respondent contends that the election held on August 8, 1980, should have been set aside be- cause of threats of reprisals by the Union's inside organizers and because of material misrepresenta- tions in a letter distributed to employees by the Union. In the alternative, Respondent contends that a hearing should be conducted on matters raised by its objections. A review of the record reveals that, pursuant to a Stipulation for Certification Upon Consent Elec- tion in Case 6-RC-8788, an election was held on August 8, 1980, in the appropriate unit. The tally was 32 for, and 31 against, the Union. There were no challenged ballots. Thereafter, Respondent filed timely objections to the election. On December 3, 1980, the Regional Director for Region 6 issued his Report and Recommendation on Objections in which he recommended that the objections be overruled, and that a certification of representative be issued. Respondent filed exceptions to the Re- gional Director's Report and Recommendation on Objections with the Board. On March 24, 1981, the Board issued its Decision and Certification of Rep- resentative (not reported in volumes of Board De- cisions) in which it adopted the Regional Direc- tor's findings and recommendations. 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 See Pittrhurs,'h Pluate (Gla (Co \ V I..R . 313 U S 146. 162 I 1),i ): Rules and Regul.ltion, {If the Bliard Sec, 10(2 67(0) and 10(2 61(l 260 NLRB No. 42 283 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All issues raised by Respondent in connection with the validity of the Certification of Representa- tive were or could have been litigated in the prior representation proceeding, 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 in connection with the refusal-to-bargain allegations. Accordingly, we grant the Motion for Summary Judgment. 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- sentative of the employer's employees. 6 We there- a We note that Respondenl admits, in its response to the Notice Ilo Show Cause. that the affirmaivce defenses raised in Responden't i ans -cr "merely reiterate the issues which Respondellt raised in (Case 6 R( 8788." and that "no new factual issues hase been raised" As to Respolid cnt's reliance on certairl circuit court decisions to support its request for ; hearing. we would point out that the Board adopted the Regional Direc- tor's report in Case 6 RC 8788 Ihat found, inter ali. thIat. even a;Isiumnirig the alleged threats occurred, they would not he sufficient to set aside Ihe election 4 The Union sought information tn acatioin schedules t lhe nuibtr of holidays, shift differentials. employee seniorily and classifications, rtale of pay of employees, jury duty makeup pay. funeral elea e pay. ilcenlivC systems, osernime premiuns, anld sarious infoirmationrt i rle enlpioyees pension and insuranlce plains. In its answer Respondent conltends. generally, that the Union is "not entitled" II such information. Respondent did not chliallenge lie Ulion' right to the infornmation on grounds that it is not clev anlt or i oessirs tt collective bargaining. hi its response to the Notice 1o Show at'l]e, Re- spondent says it has not admitted "that all of the inforrmlltion requested by the Union is presumptively rcle alit to enlable the Union to perlomrn its collective bargaining functions" Resptonderit does rlol holw cr, chal- lenge any specific item of information requested by the Unionil i] its April 8, 1981, letter (ELxh A of the GCeneral Counsel's Motion for Suniliary Judgment) nor explain why such informatiaol is not releiallt or tIecL eary to the Union's collective-bargaiiinig functlions 5 A'L.R.B x. A.4cm Indurstrial C(., 385 US 432. 435 41ih (qh7) 6 See Dyvnamic Maclhirne (o. 221 N RH 114t) (1975). arid cases cilted therein at fn. 14 fore find that, by refusing to provide the informa- tion which was requested by the Union, Respond- ent has violated Section 8(a)(l) 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: FINI)INGS OF FACT 1. TIHE BUSINI SS OF RIESPONDFINT Respondent, a divison of Tappan Co., an Ohio corporation with an office and place of business lo- cated in Milroy, Pennsylvania, has been engaged, at all times material herein, in the manufacture and nonretail sale of custom kitchen cabinets, bath- rooms vanities, and shelving. During the 12-month period ending April 30, 1981, Respondent, in the course and conduct of its operations, sold and shipped from its Milroy, Pennsylvania, facility products, goods, and materials valued in excess of $50,(00 directly to points outside the Common- wealth of Pennsylvania. During this same 12-month period, Respondent, in the course and conduct of its operations, also purchased and received at its Milroy, Pennsylvania, facility products, goods, and materials valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania. 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. 'I HI. ABOR OR(;ANIZATI ION INVOI VI'I) Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 111. fillH UNFIAIR I.AHOR PRACT ICIS A. 7he Representation Proceeding I. 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 production and maintenance employees, in- cluding truckdrivers, and group leaders em- ployed by Respondent at its J-Wood Division located in Milroy, Pennsylvania; excluding office clerical employees, watchmen and 284 .J-W()OI)/A I A'PPAN DIVISION guards, professional employees and supervisors as defined in the Act. 2. The certification On August 8, 1980, a majority of the employees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Re- gional Director for Region 6, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on March 24, 1981, and the Union continues to be such exclusive representative w ithin the meaning of Section 9(a) of the Act. B. 1he Request To Bargain and Respondenrts R fu/sal Commencing on or about April 8, 1981, 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. Com- mencing on or about May 5, 1981, and continuing at all times thereafter to date, Respondent has re- fused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since May 5, 1981, 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 that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE FFFECT+ OF: THE UNFAIR I.ABOR PRACTICES UPON COMMF.RCE 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 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 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 O1 LAW 1. J-Wood/A Tappan Division is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including truckdrivers, and group leaders employed by Respondent at its J-Wood Division located in Milroy, Pennsylvania, excluding office clerical em- ployees, w atchmen and guards, professional em- ployees 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 March 24, 1981, 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 5, 1981, 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 prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By refusing on or about May 5, 1981, and at all times thereafter, to provide the above-named labor organization with the information requested by it for the purposes of collective bargaining, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 285 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. 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)(l) of the Act. 8. 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, J- Wood/A Tappan Division, Milroy, Pennsylvania, 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 Amalgamated Clothing and Textile Workers Union, AFL-CIO- CLC, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees, in- cluding truckdrivers, and group leaders em- ployed by Respondent at its J-Wood Division located in Milroy, Pennsylvania; excluding office clerical employees, watchmen and guards, professional employees and supervisors as defined in the Act. (b) By refusing to provide the above-named labor organization with information requested by it 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. (b) Upon request, provide the above-named labor organization with information requested by it for the purpose of collective bargaining. (c) Post at its Milroy, Pennsylvania, facility copies of the attached notice marked "Appendix." 7 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 Copies of said notice, on forms provided by the Regional Director for Region 6, 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. (d) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National L abor 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 Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC, as the ex- clusive representative of the employees in the bargaining unit described below. WE WILL NOT refuse to provide the above- named labor organization with information re- quested by it for the purpose of collective bar- gaining. 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 WIL 1i, 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 production and maintenance employees, including truckdrivers, and group leaders employed by Respondent at its J-Wood Di- vision located in Milroy, Pennsylvania; ex- cluding office clerical employees, watchmen and guards, professional employees and su- pervisors as defined in the Act. 286 J-WOOD/A TAPPAN DIVISION WE WILL, upon request, provide the above- named labor organization with information re- quested by it for the purpose of collective bar- gaining. J-WOOD/A TAPPAN DIVISION 287