Fairfield Daily Republic

FAIRFIELD DAILY REPUBLIC Fairfield Publishing Company d/b/a Fairfield Daily, Republic and Northern California Newspaper. Organizing Committee. Case 20-CA-19344 4 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Upon a charge filed by the. Northern California Newspaper Organizing Committee, (the Union), on 8 November 1984, the General Counsel of the Na- tional Labor Relations Board issued a complaint on 28 November 1984 against the Company, the Re- spondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 22 May 1984, fol- lowing a Board election in Case 20-RC-15382, the Union was certified as the exclusive collective-bar- gaining representative of the Company's employees in the unit found appropriate. (Official notice is taken of the "record" in the representation pro- ceeding as defined in the Board's Rules and Regu- lations, 'Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint further al- leges that since 26 October 1984 the Company has' refused to bargain with the Union. The complaint also alleges that, since 26 October 1984, the Com- pany has failed and refused to supply information requested by the Union on 25 May 1984 which is necessary for and relevant to the Union's perform- ance of its function as the exclusive' bargaining rep- resentative of the unit employees. On 7 December 1984 the-Company filed its answer admitting in part and' denying in part the allegations in the com- plaint and raising two affirmative defenses claiming improper certification of the Union. On 22 January 1985- the General Counsel filed a Motion for Summary Judgment. On 23 January 1985 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 Company filed a response. Ruling' on Motion for Summary Judgment In its answer to the complaint and in its opposi- tion to the General Counsel's Motion for Summary Judgment, the Company admits certain factual alle- gations of the complaint; but denies that it commit- ted the unfair labor practices alleged. The Compa- ny admits that it has refused to recognize and bar- gain with the Union as the exclusive representative of the unit employees. The Company argues that it has no obligation to bargain with the Union, claim- 7 ing that the Union's certification is improper based on the Company's Objections 1, 4, 5, and 6 relating, to the 8,March 1984 election held in Case 20-RC- 15382. By these four election objections, the Com- pany asserts (1) that the Union is not a labor orga- nization within the meaning of the Act; (2) that the Union, through the conduct of its agent Pete Rock- well at a company meeting held on 6 March 1984, coerced employees in the exercise of their right to vote and created an atmosphere of fear and coer- cion, thereby interfering 'with the 8 March 1984 election; and (3) that the Union, through its written campaign literature, engaged in misrepresentations of law concerning the nature of collective-bargain- ing as defined by Section 8(d) of the Act. In sup- port of these contentions, the 'Company relies on the same evidence and arguments which it submit- ted in the underlying representation proceedings. A review of the record, including that of the representation proceedings in Case 20-RC-15382, reveals that the issues raised by the Company's four election objections were considered, and re- jected, during the representation proceedings. On 8 March 1984 the Union won the election i conduct- ed among the Company's employees.2 The Compa- ny'thereafter timely filed eight objections to the election, four of which the Company reasserts in the instant case. After an investigation pursuant to Section 102.69 of the Board's Rules and Regulations, the Acting Regional Director issued a third supplemental deci- sion, overruling all the Company's objections and certifying the Union as the exclusive representative of the bargaining unit employees. With respect to Objection 1, the Acting Regional Director deter- mined that the Company's position concerning the Union's status had been previously considered and rejected by the Board.3 Because the Company was' not advancing any new evidence in support of this objection but instead relying on evidence and argu- ments previously made available to the Board in 1981, the Acting Regional Director overruled Ob- jection 1. Regarding Objections 4 and 5, the Acting Regional Director found that the appear- i The first election in Case 20-RC-15382 was held on 12 November 1981, but later was set aside when two election objections filed by the Union were sustained The tally of ballots for the second election shows that, of approximately 135 eligible voters. 62 ballots were cast for and 53 ballots were cast against the Union with no challenged ballots 2 The unit includes all regular full-time and regular part-time employ- ees _ employed by the Company at its Fairfield, California facility, exclud- ing guards and supervisors as defined in the Act 3 Following a preelection hearing held on 17 September 1981, a Deci- sion and Direction of Election issued 8 October 1981 In the decision, the Union was found to be a labor organization within the meaning of Sec 2(5) of the Act Thereafter, the Company sought review of the decision, in particular, the findings pertaining to the Union's status On 10 Novem- ber 1981 the Board denied the Company's request for review 275 NLRB No. 2 8 DECISIONS OF NATIONAL LABOR RELATION S BOARD ance and conduct of union agent Rockwell at the 6 March 1984 company meeting did not constitute objectionable conduct. Even assuming the Compa- ny's version of the critical events of 6 March 1984,' the Acting Regional Director found, inter alia, that Rockwell's temporary interruption' of the company meeting did not prevent the Company from com- pleting its speech on unionization nor was there any evidence that those employees present were in- capable of listening or comprehending the remain- der-of the Company's speech. The Acting Regional Director found 'that, while the Rockwell incident was disruptive, -it did not actually result in' vio- lence, was an isolated event in the course of an otherwise peaceful campaign, and did not create an atmosphere of fear and coercion interfering with the employees' exercise of their right to vote in the election. The Acting Regional Director also found that the effect of Rockwell's conduct, if any, on the Company's ability to communicate its views on unionization was de minimis. In regard to Objec- tion 6, the Acting Regional Director found that the statements concerning collective bargaining set forth in a union campaign leaflet do not constitute a misrepresentation of law under the current Board standards enunciated in Midland Life Insurance Co., 263 NLRB 127 (1982). The Company timely filed exceptions to the third supplemental decision, including exceptions to the Acting Regional Director's disposition of Ob- jections 1, 4, 5, and 6. On 12 October 1984, the Board, treating the Company's exceptions as a re- quest for review, denied review because the excep- tions raised no- substantial issues warranting Board review. In the instant proceeding, the Company is at- tempting to relitigate matters pertaining to Objec- tions 1, 4, 5, and 6 which were or could have been heard and determined in the representation pro- ceeding. It is well settled that in the absence of newly dis- covered and 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 that-were or could' have been litigated in a prior representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313, U.S. 146, 1'62 (1941); Secs. 102.67(f) and, 102:69(c) of the Board's Rules and Regulations. All issues raised by the Company were or could have been litigated in the prior','representation pro= ceeding. The Company does not offer to adduce at a hearing any newly discovered and previously un- available evidence, nor does it allege any special circumstances that would require the Board to re- examine the decision made in the representation proceeding. We therefore find that the Company has not raised any issue that is properly. litigable in this unfair labor practice proceeding concerning those issues. By letters dated. 25 May and 22 October 1984, the Union requested the Company to provide it with certain information pertaining to unit and nonunit 'employees. For unit employees, the re- quested information includes their names, address- es, telephone numbers, birthdates, social security numbers, ethnic designations, dates of hire, wage rates, job classifications or descriptions, depart- ments, and merit rating scores; the dates for any merit increases which they may have received; the company and employee contribution breakdown for any medical, life, and disability insurance cov- ering unit employees; the insurance carriers' names, insurance premiums, and a description of the insur- ance coverage for any insurance covering unit em- ployees; a copy of the' Company's pension plan and contribution breakdown for any pension benefits covering unit employees; the Company's policies and practices regarding terms and conditions of employment for unit employees;4 and any individ- _ ual contracts between the Company and unit em- ployees. In addition, the Union requested the names and duties of nonunit employees and infor- mation about any discrimination complaints that may have been filed against the Company by any employee, past or present, including the disposition of these matters, if any. By letters dated 25 June and 26 October 1984, the Company refused to fur- nish the Union-with any of the requested informa- tion. The General Counsel alleges in the complaint that this information is necessary for and relevant to the Union's performance of its function as exclu- sive collective-bargaining representative of the unit employees. The Company in its answer to the com- 'plaint admits the receipt of the Union's information requests but denies the necessity for and the rel- evance of some but not all of the information. In its opposition to the General Counsel's Motion for Summary Judgment, the Company asserts that, as- suming a bargaining obligation with the Union exists, the General Counsel has not established the relevancy of the,data relating to nonunit employees and the discrimination complaints. The Company does not contest the relevancy. of the requested in- formation concerning the unit employees. It is well established that wages, fringe benefits, employment data, and company policies and prac- '' Those policies and practices specifically identified pertain to vaca- tions, holidays, transfers, sick leave, various mileage expenses, hiring standards, pay standards, promotional standards, and work schedules FAIRFIELD DAILY REPUBLIC 9 tices concerning bargaining unit employees are pre- sumptively relevant for the purposes of collective bargaining and must be provided on request to the employees' bargaining representative.5 Further- more, a union is not required to demonstrate the exact relevance of such information unless the em- ployer has submitted evidence sufficient to rebut the presumption of relevance.6 We observe that the Company does not contest the relevancy of the Union's requests for any of the information pertain- ing to unit employees. Accordingly, since the infor- mation about unit employees requested by the Union is presumptively relevant and since no mate- rial issues of fact exist with respect to the Compa- ny's refusal to furnish any of the information sought, we grant the General Counsel's Motion for Summary Judgment only to the extent that it re- lates to the Union's request for the data pertaining to the unit employees. We deny summary judgment to the extent that it relates to the Union's request for information relating to the 'nonunit employees and the discrimination complaints for the reasons set out below. = We find merit, at this stage of the proceedings, to the Company's contentions concerning a lack of relevancy' for the information for the nonunit em- ployees and the discrimination complaints. We find that such information is not presumptively rele- vant7 and, on the state of the record before us, the General Counsel has not established the requisite relevancy to entitle the Union to such information. As we stated in Ken tile, supra "[r]elevance cannot be established by speculative argument alone with- out record' evidence to support the applicability of those arguments to the present circumstances."8 Moreover, it appears that the Union's request for discrimiantion complaints embraces any kind of dis- crimination complaint, regardless of whether it was filed by a unit or a nonunit employee. Cf. Westing- house Electric Corp., 239 NLRB 106 (1978). Accordingly, we deny the General Counsel's Motion for Summary Judgment as it relates to the Union's requests for the nonunit employees' data and discrimination complaints. In doing so, howev- er, we remand that portion of the case for further processing of-the complaint, including an evidentia- ry hearing before- an administrative law judge for the purpose of adducing evidence concerning the exact scope of the information request and the rel- 5 NLRB v Acme Industrial Co. 385 U S 432 (1967), Hawaiian Flour Mill, 274 NLRB 1110 (1985), Equitable Life Assurance Society, 266 NLRB 732 (1983), Georgetown Holiday Inn, 235 NLRB 485 (1978), Western Mas- sachusetts Electric Co, 234 NLRB 118 (1978) 6 Grand Islander Health Care Center, 256 NLRB 1255 (1981) Leland Stanford Junior University, 262 NLRB 136, 139 (1982), Kentile Floors, 242 NLRB 755, 757 (1979) 8 Kentile Floors, 242 NLRB at 757 evancy issues described above, if the General Counsel wishes to further proceed on these mat- ters. ' On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Company, a California corporation, is en- gaged in the publication, circulation, and distribu- tion of The Daily Republic, a daily newspaper, at its facility in Fairfield, California, where it annually derives gross revenues in excess of $200,000, held membership in or subscribed to various interstate news services, published various national syndicat- ed features, and advertised various nationally sold products. We find that the Company is an employ- er 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 Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 8 March 1984 the Union was certified on 22 May 1984 as the collec- tive-bargaining representative of the employees in the following appropriate unit: All regular full-time and regular part-time em- ployees employed by the Employer at its Fair- field; California facility; excluding guards and supervisors as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain By letters dated 20 June and 22 October 1984, the Union has requested the Company to bargain. By letters dated 25 May and 22 October 1984, the Union requested the Company to provide it with certain- information concerning unit employees nec- essary for and relevant to the Union's performance of its function as the exclusive bargaining repre- sentative of the unit employees. By letters dated 25 June and 26 October 1984, the Company has re- fused- to bargain with' the Union or furnish it with the requested information. We find that this refusal constitutes an unlawful refusal `to bargain in viola- tion of'Section 8(a)(5) and (1) of the Act. - -CONCLUSIONS OF LAW By refusing,on and after 25 June and 26 October 1984 to bargain with the_ Union as the exclusive 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective-bargaining representative of employees in the appropriate unit and to provide it with the requested information concerning unit employees, the Company has engaged in unfair labor practices affecting 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 shall also order the Respondent, on request, to supply the Union with information which is neces- sary for and relevant to the Union's performance of its function as the exclusive representative of the unit employees. To ensure that the employees are accorded the services 'of.-their selected bargaining agent for- the period provided by law, we shall construe The ini- tial period of the certification 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. 81.7 (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, Fairfield Publishing Company d/b/a Fairfield Daily Republic, Fairfield, Califor- nia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Northern California Newspaper Organizing Committee as the exclusive bargaining representative of the employees in the bargaining unit. (b) Refusing to supply the Union with informa- tion necessary for and relevant to its role as exclu- sive bargaining representative' of the unit employ- ees. . (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take. the following affirmative action neces- sary to effectuate the policies of the Act. ' (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All regular full-time and regular' part-time em- ployees employed by the Employer at its Fair- field, California facility; excluding guards and supervisors as defined in the Act. (b) On request, supply the Union with informa- tion necessary for and relevant to its role as exclu- sive bargaining representative of the unit employ- ees, including the information concerning unit em- ployees requested in the Union's .25 May and 22 October 1984 letters except the data concerning nonunit employees and discrimination complaints. (c) Post at its facility in Fairfield, California, copies of the attached notice marked "Appendix."9 Copies of the notice, on forms provided by the Re- gional Director for Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Respondent 'immediately upon receipt and maintained for 60. consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered,by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. - IT IS FURTHER ORDERED that the allegations per- taining to the Union's request for information con- cerning nonunit employees and discrimination com- plaints is, remanded for further appropriate action not inconsistent with this decision. 9 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Northern California Newspaper Organizing Committee (the Union) as the exclusive representative of the em- ployees in the bargaining unit. WE WILL NOT refuse to supply the Union with information necessary for and relevant to its role as exclusive bargaining representative of the unit em- ployees. FAIRFIELD DAILY REPUBLIC II WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise 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 bargaining unit: All regular full-time and regular part-time em- ployees employed by the Employer at its Fair- field, California facility; excluding guards and supervisors as defined in the Act. WE WILL supply the Union with information necessary for and relevant to its role as exclusive bargaining representative of the unit employees, in- cluding the information concerning unit employees requested in the Union's 25 May and 22 October 1984 letters except the data concerning nonunit em- ployees and discrimination complaints. FAIRFIELD PUBLISHING COMPANY D/B/A FAIRFIELD DAILY REPUBLIC