Comcast Cablevision--Taylor

328 NLRB No. 160 1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Comcast Cablevision—Taylor and Local 4100, Com- munications Workers of America, AFL–CIO. Case 7–CA–42054 August 5, 1999 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND BRAME Pursuant to a charge filed on May 19, 1999, the Gen- eral Counsel of the National Labor Relations Board is- sued a complaint on June 2, 1999, alleging that the Re- spondent has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act by refusing the Union’s re- quest to bargain and to furnish information following the Union’s certification in Case 7–RC–21365. (Official notice is taken of the “record” in the representation pro- ceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer, with af- firmative defenses, admitting in part and denying in part the allegations in the complaint. On July 1, 1999, the General Counsel filed a Motion for Summary Judgment. On July 2, 1999, the Board is- sued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bar- gain and to furnish information, but attacks the validity of the certification on the basis of its objections to con- duct alleged to have affected the results of the election in the representation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). We also find that no issue warranting a hearing is raised with respect to the Union’s information requests. The Union requested bargaining by letter dated May 13, 1999, and by an attachment thereto requested the fol- lowing information from the Respondent: • Copies of all relevant insurance and pension plans. • A copy of job descriptions. • A list of all employees in the bargaining unit, ti- tles, hire dates and wage rates. • A description of all benefits. • A specification of any changes in wages, hours, or terms and conditions of employment, planned or implemented since August 1998. • A copy of all company practices and policies af- fecting unit employees. Thereafter, by letter dated May 14, 1999, the Union re- quested the following additional information from the Re- spondent: • A copy of the personnel file of unit employee Marcus Rogers. The Respondent’s answer admits that it refused to pro- vide the information to the Union. Further, although the Respondent’s answer denies that the information re- quested is necessary and relevant for the Union’s duties as the exclusive bargaining representative of the unit employees, it is well established that such information is presumptively relevant and must be furnished on request. See, e.g., Masonic Hall, 261 NLRB 436 (1982); and Mo- bay Chemical Corp., 233 NLRB 109 (1997). The Re- spondent has not attempted to rebut the presumption of the relevance of the information requested by the Union. Accordingly, we grant the Motion for Summary Judg- ment1 and will order the Respondent to recognize and bargain with the Union and to furnish it the information requested. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation with offices and place of business at 24744 Eureka Road, Taylor, Michigan (the Taylor facility), has been engaged in the transmission of television programming by cable for residential use in the Southeastern Michigan area. During calendar year 1998, the Respondent, in con- ducting its business operations, had gross revenues in excess of $500,000 and purchased goods valued in ex- cess of $50,000 from points located outside the State of Michigan, and caused the goods to be delivered directly to its Taylor facility. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and 1 The Respondent’s request to dismiss the complaint is therefore dismissed. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held August 27, 1998, the Un- ion was certified on May 4, 1999, as the exclusive col- lective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time field and technical employees, ware-house and converter control/repair employees and plant clerical employees, including in- stallers, service techs, line/maintenance techs, lead line techs, construction employees, drafts person, headend techs, lead headend techs, bench techs, converter con- trol/repair employees, warehouse employees, dispatch- ers, check-in employees and tech secretary, employed by Respondent at its facility at 24744 Eureka Road, Taylor, Michigan; but excluding office clerical em- ployees, confidential employees, managerial employ- ees, guards and supervisors as defined by the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain On May 13, the Union, by letter, requested the Re- spondent to bargain and to furnish information, and on May 14, 1999, requested additional information. Since May 17, 1999, the Respondent has failed and refused to bargain and to furnish the requested information. We find that this failure and refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing on and after May 17, 1999, to bargain with the Union as the exclusive collective- bargaining representative of employees in the appropriate unit and to furnish the Union requested information, the Respondent has engaged in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. We also shall order the Respon- dent to furnish the Union the information requested. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the cer- tification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Comcast Cablevision—Taylor, Taylor, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local 4100, Communica- tions Workers of America, AFL–CIO as the exclusive bargaining representative of the employees in the bar- gaining unit, and refusing to furnish the Union informa- tion that is relevant and necessary to its role as the exclu- sive bargaining representative of the unit employees. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive representative of the employees in the following appro- priate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time field and technical employees, ware-house and converter control/repair employees and plant clerical employees, including in- stallers, service techs, line/maintenance techs, lead line techs, construction employees, drafts person, headend techs, lead headend techs, bench techs, converter con- trol/repair employees, warehouse employees, dispatch- ers, check-in employees and tech secretary, employed by Respondent at its facility at 24744 Eureka Road, Taylor, Michigan; but excluding office clerical em- ployees, confidential employees, managerial employ- ees, guards and supervisors as defined by the Act. (b) Furnish the Union the information that it requested on May 13 and 14, 1999. (c) Within 14 days after service by the Region, post at its facility in Taylor, Michigan, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 7 after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the 2 If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” COMCAST CABLEVISION—TAYLOR 3 Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since May 17, 1999. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. August 5, 1999 Sarah M. Fox, Member Wilma B. Liebman, Member J. Robert Brame III, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX Notice To Employees Posted by Order of the National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Local 4100, Communications Workers of America, AFL-CIO as the exclusive bargaining representative of the employees in the bargaining unit, and WE WILL NOT refuse to furnish the Union information that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bar- gaining unit: All full-time and regular part-time field and technical employees, ware-house and converter control/repair employees and plant clerical employees, including in- stallers, service techs, line/maintenance techs, lead line techs, construction employees, drafts person, headend techs, lead headend techs, bench techs, converter con- trol/repair employees, warehouse employees, dispatch- ers, check-in employees and tech secretary, employed by us at our facility at 24744 Eureka Road, Taylor, Michigan; but excluding office clerical employees, confidential employees, managerial employees, guards and supervisors as defined by the Act. WE WILL furnish the Union the information that it re- quested on May 13 and 14, 1999. COMCAST CABLEVISION—TAYLOR