Del Rey Tortilleria, Inc.

1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Del Rey Tortilleria, Inc. and Local 76, Internation- al Ladies' Garment Workers Union, AFL-CIO. Case 13-CA-24851 - 23 August 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Upon a charge filed by the Union on 19 Febru- ary 1985, the General Counsel of the National Labor Relations Board issued a complaint on 27 February 1985 against the Company, the Respond- ent., alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 14 November 1984, following a Board- election in Case 13-RC- 16102, the Union was certified as the exclusive col- lective-bargaining representative of the Company's employees "in the unit found appropriate. (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), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint fur- ther alleges that since about 4 February 1985 the Company has refused to bargain with the Union and has refused to supply information requested by the Union on 1_ February 1985 which is necessary for and relevant to the Union's performance of its function as the exclusive collective-bargaining rep- resentative of unit employees. On 4 March 1985 the Company filed its answer admitting in part and de- nying in part the allegations in the complaint. On 20 May 1985 the General Counsel filed a Motion for Summary Judgment. On 22 May 1985 the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. The Company filed a response.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment In its answer to the complaint,, the Company admits that it has refused to recognize and bargain with the Union as the exclusive representative of the unit employees. The Company, however, con- tends that it has no obligation to bargain with the Union, claiming that the Union's certification is im- proper. In opposition to the General Counsel's Motion for Summary Judgment, the Company i The General Counsel's motion to strike an attachment to the re- sponse is denied argues that a union agent spoke with employees outside the building where the election took place before the voting in violation of the rule estab- lished in Milchem, Inc., 170 NLRB 362 (1968), and that such activity rendered the election invalid. A review of the record reveals that an election was held on 22 December 1982 pursuant to a Stip- ulation for Certification Upon Consent Election. The original tally of ballots shows that of approxi- mately 95 eligible voters, 38 cast votes for the Union, 2 cast votes for Local 301, International Brotherhood of General Workers, and 23 ' cast bal- lots for neither union . There were 27 challenged ballots, a number sufficient to affect the results of the election. On 30 December -1982 the Company filed timely objections to the election. The Region- al Director directed a hearing to resolve, inter alia, the issues raised by the Company's objections. On 2 May 1983 representatives- for the Union, the Company, and the Regional Director entered into a stipulation sustaining challenges to 15 of the bal- lots. The 12 remaining challenged ballots were an insufficient number to affect the election results. Accordingly, an amended tally of ballots issued re- flecting that a majority of the valid votes counted were cast for the Union. After a hearing in the consolidated representation and unfair labor prac- tices proceedings, on 24 August.1983 a judge rec- ommended, inter alia, overruling the Company's objections. The Company filed exceptions with the Board. On 14 November 1984 the Board issued a decision affirming the judge's rulings, findings, and conclusions and issued a Certification of Represent- ative. 272 NLRB 1106 (1984). At the hearing before the judge, the Company offered the testimony of Steven Loren in an effort to prove the Milchem rule violation. Loren would have testified that he had seen a union agent speak- ing with employees on the day of the election out- side the building' where the polling took place. The judge refused to allow Loren's testimony because he had violated the terms of a sequestration order by observing approximately 45 minutes of another witness' testimony. The Board found that the mat- ters set forth in the offer of proof, if true and con- sidered in the light most favorable to Respondent, did not support the allegation that the Milchem rule was violated. The Board emphasized, inter alia, that Loren's proposed testimony indicated that the electioneering took place away from the polling places and employees were not waiting in a voting line, but were merely waiting to enter the building to proceed to the polling place. In the answer to the Notice to Show Cause, the Company, in effect, asks the Board to reconsider its decision. 275 NLRB No. 211 DEL REY- TORTILLERIA, 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, 162 (1941); Sections, 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.2 We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly we grant the Motion for Summary Judgment re- garding the Company's refusal. to bargain. By letter .dated 1 February 1985 the Union re- quested the Company to provide it with a list of all bargaining unit employees' names, dates of hire, job classifications, rates of pay, plant assignments, and normal shift hours, and a statement of current health insurance, pension, holidays, vacations, se- niority, leave of absence, and discipline policies. By letter dated 4 February 1985 the Company refused to furnish the Union with any of the requested in- formation. The General Counsel alleges in complaint para- graph 7(b) that this information is necessary for and relevant to the Union's . performance of its function as exclusive collective-bargaining repre- sentative of the unit 'employees. The Company in its answer to the complaint admits that it refused to provide the requested information, but it "denies that it was obligated to do so." The Company does not deny the relevancy of the requested informa- tion, but merely denies paragraph .7(b) "as the Union is not the exclusive collective bargaining representative of the Unit." It is well established that information concerning wages,, fringe benefits, and classifications concern- ing bargaining unit employees is presumptively rel- evant for purposes of collective bargaining. and 2 The Company argues that certain activity occurring after the election has relieved it of the obligation to bargain with the Union_ Specifically, the Company contends that the Union distributed' materials to the public which intimated that the Company was involved • in killing a union agent Because of these actions , the Company claims, employees have expressed disinterest in the Union , thereby constituting "unusual circumstances" Justifying its refusal to bargain We find no merit in this contention- The Company's reliance on Union .National de Trabajadores, (Carborundrum Co), 219 NLRB 862 (1975), a case involving incidents of union violence after certification as justification for refusing to bargain, is clearly , mis- placed ' - 1487 must be provided on, request to the employees' bar- gaining representative .3 Furthermore, a union is not required to demonstrate the exact relevance of such information unless the employer has submitted evidence sufficient to rebut the'presumption of rel- evance.4 The Company's answer to the complaint does not contest the relevancy of the information' the Union requested. Accordingly, because the in- formation about unit employees the Union request- ed is presumptively relevant and because no mate- rial-issues of fact exist with respect to the Compa- ny's refusal to furnish any of the.•,informatio'n sought, we grant the General Counsel's Motion for Summary Judgment. On the entire record, the Board makes- the fol- lowing FINDINGS OF FACT I. JURISDICTION The Company is engaged in the manufacture of tortillas and related products at its facilities in Chi- cago, Illinois, where it annually sells and ships products, goods, and materials' valued, in excess of $50,000 directly to points outside the State of Illi- nois. We find that the Company is an employer en- gaged 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 22 December 1982 the Union 'was, certified on 14 November 1984 as the collective-bargaining representative of the-em- ployees'in the following appropriate unit:' .All full-time and regular part-tithe, production and maintenance employees-of the, Employer at its facilities now located at 1023 W. 18th Street, Chicago, Illinois,, and 2701 S. Trumbull, Chicago, Illinois, but 'excluding office clerical employees, truck drivers, guards and supervi- sors as : defined in,.the Act. • -. , , , . . The `Union-'contin e to be the exclusive: represent- ative under Section 9(a) of the Act. B;;Refusals_to Bargain. Since'- I February 1985 the Union' has requested the Company to bargain and to' provide it with cer- a United States Steel Corp-, 275 NLRB No 107 (June 19, 1985) (riot printed in Board volumes), Hawaiian Flour Mill. 274 NLRB 1108 (1985) 4 Fairfield Daily Republic, 275 NLRB 7•(1985), Grand Islander Health Care Center, 256 NLRB 1255 (1981) 1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tain information concerning unit employees neces- sary for and relevant to the Union's performance of its function as the exclusive bargaining representa- tive. Since 4 February '1985 the Company has re- fused to bargain with the Union or furnish it with the requested information. We find that these refus- als constitute unlawful refusals to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. ' CONCLUSIONS OF LAW By refusing on and after 4 February 1985 to bar- gain with the Union-as the exclusive collective-bar- gaining representative of employees in the appro- priate unit and to provide it with the requested in formation concerning unit employees, the Compa- ny 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 to supply the Union with the information it requested that is nec- essary for and relevant to the Union's peformance 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. 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, Del Rey Tortilleria, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with • Local 76, Interna- tional Ladies' Garment Workers Union, AFL-CIO 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 full-time and regular part-time production and maintenance employees of the Employer of its facilities now located at 1023 W. 18th Street, Chicago, Illinois, and 2701 S. Trumbull, Chicago, Illinois, but excluding office clerical employees, truck drivers, guards and supervi- sors as defined in the Act. (b) Supply the Union with the information it re- quested on' 1 February 1985 that is necessary for and relevant to its role as exclusive bargaining rep- resentative of the unit employees. (c) Post at its two facilities in Chicago, Illinois, copies of-the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Re- gional Director for Region 13, 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. 5 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 Local 76, International Ladies' Garment Workers Union, DEL REY TORTILLERIA AFL, CIO as the exclusive representative of the employees 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. 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: 1489 All full-time and regular part-time production and maintenance employees of the Employer at its facilities now located at 1023 W. 18th Street, Chicago, Illinois, and 2701 S. Trumbull, Chicago, Illinois, but excluding office clerical employees, truck drivers, guards and supervi- sors as defined in the Act. WE WILL supply the Union with the information the Union requested on 1 February 1985 that is necessary for and relevant to its role as exclusive bargaining representative of the unit employees. DEL REY TORTILLERIA, INC.