Atrex, Inc.

328 NLRB No. 57 1 NOTICE: This opinion is subject to formal revision before publication in the bound 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. Atrex, Inc. and Communications Workers of Amer- ica, AFL–CIO. Case 10–CA–31496 May 10, 1999 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND BRAME Pursuant to a charge filed on February 9, 1999, the General Counsel of the National Labor Relations Board issued a complaint and amended complaint on March 3 and 18, 1999, respectively, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National La- bor Relations Act by refusing the Union’s request to bar- gain and to furnish information following the Union’s certification in Case 10–RC–14929. (Official notice is taken of the “record” in the representation proceeding 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 answers admitting in part and denying in part the allegations in the complaint and amended complaint, and asserting affirmative defenses. On April 6, 1999, the General Counsel filed a Motion for Summary Judgment. On April 7, 1999, the Board issued 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 to the amended complaint, the Respon- dent attacks the validity of the Union’s certification on the basis of its objections to the conduct 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 there are no issues warranting a hearing with respect to the Union’s request for information. The Re- spondent admits that the Union requested that the Re- spondent furnish certain information related to the Un- ion’s representation of unit employees described in ap- pendices A and B to the amended complaint. The re- quested information dealing with employee benefits is presumptively relevant and must be furnished on request. See Trustees of Masonic Hall, 261 NLRB 436 (1982), and Mobay Chemical Corp., 233 NLRB 109 (1977). The Respondent has not attempted to rebut the relevance of the requested information and admits refusing to furnish it. Accordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent is a Florida corporation with an office and place of business located in East Point, Georgia, where it is engaged in the installation of digital wireless entertainment services. During the 12-month period pre- ceding the issuance of the complaint, the Respondent performed services at its East Point, Georgia facility val- ued in excess of $100,000 and has purchased and re- ceived goods valued in excess of $50,000 directly from suppliers located outside the State of Georgia. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (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 September 29, 1998, the Union was certified on November 23, 1998, as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit: All full-time and regular part-time employees em- ployed by the employer at its various metropolitan At- lanta facilities, including installation technicians, edu- cators, and dispatchers, but excluding all other employ- ees, office clerical employees, guards, and supervisors as defined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain Since December 16, 1998, and January 11, 1999, the Union, by letters, has requested the Respondent to bar- gain and to furnish certain information, and, since De- cember 16, 1998, the Respondent has refused. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after December 16, 1998, to bar- gain 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. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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, Atrex, Inc., East Point, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Communications Workers of America, AFL–CIO, as the exclusive bargaining rep- resentative of the employees in the bargaining unit, and refusing to furnish the Union information that is relevant and necessary to its role as the exclusive bargaining rep- resentative 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 employees em- ployed by the employer at its various metropolitan At- lanta facilities, including installation technicians, edu- cators, and dispatchers, but excluding all other employ- ees, office clerical employees, guards, and supervisors as defined in the Act. (b) Furnish the Union information it requested on De- cember 16, 1998, and January 11, 1999. (c) Within 14 days after service by the Region, post at its facility in East Point, Georgia, copies of the attached notice marked “Appendix.” 1 Copies of the notice, on 1 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.” forms provided by the Regional Director for Region 10 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 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 December 16, 1998. (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. May 10, 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Communications Workers of America, AFL–CIO, as the exclusive repre- sentative of the employees in the bargaining unit. 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 ATREX, INC. 3 conditions of employment for our employees in the bar- gaining unit: All full-time and regular part-time employees em- ployed by us at our various metropolitan Atlanta facili- ties, including installation technicians, educators, and dispatchers, but excluding all other employees, office clerical employees, guards, and supervisors as defined in the Act. WE WILL furnish the Union the information it requested on December 16, 1998, and January 11, 1999. ATREX, INC.