Van Leer Containers, Inc.

VAN LEER CONTAINERS Van Leer Containers, Inc. and United Steelworkers of America, AFL-CIO. Case 15-CA-9720 30 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON Upon a charge filed by the Union on 18 July 1985, the General Counsel of the National Labor Relations Board issued a complaint on 1 August 1985 against the Company, the Respondent, alleg- ing that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 21 June 1985, fol- lowing a Board election in Case 15-RC-7126, 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 9 July 1985 the Company has re- fused to bargain with the Union. On 16 August 1985 the Company filed its answer admitting in part and denying in part the allegations of the com- plaint. On 29 August 1985 the General Counsel filed a Motion for Summary Judgment. On 18 September 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. 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 its refusal to bargain with the Union as the exclusive collective-bargaining representative of its employees, but attacks the Union's certification in the underlying representation proceeding The Company contends that the Union engaged in ob- jectionable conduct which warranted setting the election aside or, in the alternative, required an evi- dentiary hearing to resolve the issues raised by the Company's objections to the election. ' The unit is All production and maintenance employees employed by the Em- ployer at its Canton, Mississippi location including truck drivers but excluding office clerical , technical and professional employees, guards, watchmen, group leaders and supervisors as defined in the Act 675 The Company also contends that the Board failed to comply with the Act, the Board's Rules and Regulations, and the Administrative Procedure Act by failing to analyze the issues raised by the Company in its exceptions to the Regional Direc- tor's Report on Objections. The General Counsel argues that the Company's defenses concerning its objections to the election are an attempt to reliti- gate those issues rejected by the Board in the rep- resentation proceeding and that all other defenses are without merit. We agree with the General Counsel. The record shows that an election was held on 4 December 1984 pursuant to a Stipulated Election Agreement. The tally of ballots shows that of ap- proximately 89 eligible voters, 52 cast ballots for the Union and 34 cast ballots against the Union. There were no challenged ballots. Thereafter the Company filed timely objections to conduct affect- ing the results of the election. After conducting an investigation, the Regional Director for Region 15 issued his report on 16 January 1985 recommend- ing that the objections be overruled in their entire- ty. The Company filed exceptions to the Regional Director's recommendation, urging that the elec- tion be set aside or, in the alternative, that a hear- ing be held to resolve issues allegedly raised by the Company's objections. On 21 June 1985 the Board adopted the Regional Director's findings and rec- ommendation to overrule the objections in their en- tirety and certified the Union as bargaining repre- sentative of the unit employees.2 By letter dated 3 July 1985 the Union requested the Company to bargain and to provide it with cer- tain information which is related to the Union's role as bargaining representative of the Company's employees. 1 6 By letter dated 9 July 1985 the Com- pany responded to the Union, refusing the Union's request for negotiations and information because it wished to seek judicial review of the Board's deci- sion certifying the Union. 1. Name, age, sex, date of hire, job title, and rate of pay for each employee in the bar- gaining unit; 2. Copies of the present insurance and pension plans including any premium paid by em- ployees; 3. Amount of paid vacation and qualifications for same; and 4. A listing of holidays and any other benefits or practices enjoyed by employees. 2 Van Leer Containers, Case 15-RC-7126 (June 21 , 1985) (not reported in Board volumes) 2 The Union requested the following information 279 NLRB No. 79 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel argues, inter alia, in her Motion for Summary Judgment that the Company has not raised any issue which was not considered by the Board in the representation proceeding and therefore the Company's refusal to bargain and to provide information violates Section 8(a)(5) and (1) of the Act. In its response to the Notice to Show Cause, the Company continues to dispute the validity of the certification, claiming that the Board erred in over- ruling its objections and in denying a hearing on the objections. The Company also argues that the Board failed to articulate the reasons and rationale for its decision in the underlying proceeding and, in this manner violated the National Labor Rela- tions Act, the Administrative Procedure Act, and the Company's right to due process. 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); Secs. 102.67(t) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Company relating to its objections to the election were or could have been litigated in the prior representation proceeding. The Company does not offer to adduce at a hear- ing any newly discovered and previously unavail- able evidence, nor does it allege any special cir- cumstances that would require the Board to reex- amine the decision made in the representation pro- ceeding. We also find no merit in the Company's argument that the Board violated the law or denied the Company due process because the Board alleg- edly failed to articulate its reasons for adopting the Regional Director's recommendation . The Board's Decision and Certification of Representative states that the Board has considered the Company's ob- jections and the Regional Director's report, and that the adoption of the findings and recommenda- tion was based on a review of the record and the exceptions and briefs.4 Additionally, it is well established that the infor- mation sought by the Union is presumptively rele- vant for purposes of collective bargaining and must 4 We also find no merit in the Company's contention that the Board improperly relied on the Regional Director's ex pane investigation It is clear from the Regional Director's report that , in evaluating the objec- tions, the Regional Director assumed the truth of the Company's evi- dence offered in support of its objections rather than relying on his own evaluation of controverted facts gathered from the investigation Accord- ingly he properly denied a hearing on the objections Cf Anchor Inns v. NLRB, 644 F 2d 292 (3d Cir 1981) be furnished upon request.5 The Company has not attempted to rebut the relevance of the information requested by the Union. We find that no material issues of fact exist with regard to the Company's refusal to furnish the information sought by the Union in its letter dated 3 July 1985. Accordingly we grant the Motion for Summary Judgments On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a Delaware corporation licensed to and doing business in Canton, Mississippi, is en- gaged in the manufacture and sale of steel shipping containers. During the past year, a representative period, the Company, in the course and conduct of its business operations, sold and shipped products valued in excess of $50,000 directly to points locat- ed outside the State of Mississippi. We find that the Company is an employer engaged in commerce within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 4 December 1984, the Union was certified 21 June 1985 as the collec- tive-bargaining representative of the employees in the following appropriate unit: All production and maintenance employees employed by the Employer at its Canton, Mis- sissippi location including truck drivers but ex- cluding office clerical, technical and profes- sional employees, guards, watchmen, group leaders 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 and to Provide Information About 3 July 1985 the Union requested the Com- pany to bargain and to provide it with information relevant to its role as bargaining agent , and since about 9 July 1985 the Company has refused these requests. We find that these refusals constitute un- lawful refusals to bargain in violation of Section 8(a)(5) and (1) of the Act. 5 Mobay Chemical Corp, 233 NLRB 109, 110 (1977), and cases cited therein at fn. 5 Member Babson did not participate in the underlying representation proceeding In joining his colleagues in granting the General Counsel's Motion for Summary Judgment , he notes that the Company is not enti- tled to litigate in this proceeding issues which could have been or were litigated in the underlying representation proceeding VAN LEER CONTAINERS CONCLUSIONS OF LAW By refusing on and after 3 July 1985 to bargain with the Union as the exclusive collective-bargain- ing representative of employees in the appropriate unit and to provide the Union with requested infor- mation which is relevant to its responsibility as bar- gaining agent, 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, and to provide the Union, on request, information necessary for collective bargaining. 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, Van Leer Containers, Inc., Canton, Mississippi, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Steelworkers of America, AFL-CIO as the exclusive bargaining representative of the employees in the bargaining unit. (b) Refusing to provide the Union with the infor- mation requested by it on 3 July 1985. (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, and provide the Union, on request, information necessary for collective bargaining: 677 All production and maintenance employees employed by the Employer at its Canton, Mis- sissippi location including truck drivers but ex- cluding office clerical , technical and profes- sional employees, guards, watchmen, group leaders and supervisors as defined in the Act. (b) Post at its facility in Canton, Mississippi, copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Re- gional Director for Region 15, 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. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. MEMBER DENNIS, dissenting. In the underlying representation proceeding, I concluded, contrary to the majority, that a hearing was warranted on the Employer's Objection 2. Therefore, in my view, the Union's certification was improper . Accordingly, I would deny the General Counsel's Motion for Summary Judgment, and I dissent from my colleagues' findings of viola- tions of Section 8(a)(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 Nation- al Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with United Steelworkers of America, AFL-CIO as the exclu- sive representative of the employees in the bargain- ing unit. WE WILL NOT refuse to furnish the Union with the information requested by it on 3 July 1985. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 production and maintenance employees employed by the Employer at its Canton, Mis- sissippi location including truck drivers but ex- cluding office clerical, technical and profes- sional employees, guards, watchmen, group leaders and supervisors as defined in the Act. WE WILL, on request, provide the Union, as it requested in its 3 July 1985 letter, the information that is relevant and necessary to its role as the ex- clusive bargaining representative of the employees in the bargaining unit. VAN LEER CONTAINERS, INC.