Angelica Healthcare Services Group, Inc.

864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Angelica Healthcare Services Group , Inc. and Amal- gamated Service and Allied Industries Joint Board, Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC. Case 39-CA- 2994 24 June 1986 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON Upon a charge filed by the Union 1 April 1986, the General Counsel of the National Labor Rela- tions Board issued a complaint 16 April 1986 against the Company, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act. The complaint alleges that on 12 February 1986, following a Board election in Case 39-RC-584, 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 3 March 1986 the Company has re- fused to recognize and bargain with the Union and has refused to provide the Union with requested in- formation necessary and relevant to the Union's collective-bargaining function. On 25 April 1986 the Company filed its answer admitting in part and denying in part the allegations in the complaint. On 8 May 1986 the General Counsel filed a Motion for Summary Judgment. On 12 May 1986 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 and a Cross Motion for Summary Judgment.' The Union filed a memorandum in sup- port of the General Counsel's motion, and request- ing that certain additional relief be included in the Board's Order. 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 and response the Company admits its refusal to bargain and to furnish information re- quested by the Union, but disputes the validity of the certification on the basis of its objections to the ' The Company has requested oral argument This request is denied as the record, motions, and briefs adequately present the issues and the posi- tions of the parties election in the representation proceeding. The Gen- eral Counsel argues that all material issues have been previously decided. We agree with the Gener- al Counsel. The record, including the record in Case 39- RC-584, reveals that an election was held on 11 and 12 April 1985 pursuant to a Stipulated Election Agreement. The tally of ballots shows that of ap- proximately 133 eligible voters, 69 cast ballots for and 61 against the Union; there was I challenged ballot, an insufficient number to affect the results. The Company subsequently filed timely objections to conduct affecting the results of the election. The Company alleged that, during the election, the Union's observer engaged in conversations with employees waiting in line to cast their ballots; that employees supporting the Union engaged in loud chanting of prounion slogans while balloting was underway and that these slogans could be heard in the polling area by employees waiting to vote; and that the Board agent conducting the election failed and/or refused to take action to stop the alleged misconduct. On 8 August 1985, following a hearing, Adminis- trative Law Judge Steven Davis issued his Recom- mended Decision on Objections in which he rec- ommended that the Company's objections be over- ruled. The Company filed timely exceptions to the judge's decision. On 12 February 1986 the Board issued a Decision and Certification of Representa- tive in which it adopted the judge's decision and certified the Union as the exclusive bargaining rep- resentative of the Company's employees in the ap- propriate unit (not reported in Board volumes). By letter dated 25 February 1986, the Union re- quested the Company to bargain with it and to fur- nish it with certain specified information relevant to collective bargaining.2 By letter dated 3 March 1986, the Company refused to bargain and to pro- vide the information. 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(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 2 The information requested included, inter alia, employees' names, ad- dresses, titles, hiring and seniority dates, wages, hours, insurance and pen- sion benefits, and disciplinary records 280 NLRB No. 100 ANGELICA HEALTHCARE SERVICES 865 I 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 the underlying representation matter. Additionally, it is well established that the information requested by the Union, which involves job-related data con- cerning unit employees and their terms and condi- tions of employment, is presumptively relevant to the Union's performance of its collective-bargain- ing function and must be furnished on request.' The Company has not attempted to rebut the rel- evance of the information requested by the Union. We therefore find that no material issues of fact exist with regard to the Company's refusal to fur- nish the information sought by the Union. Accord- ingly, we grant the Motion for Summary Judg- ment.4 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a New York corporation, is en- gaged in the nonretail operation of a laundry pro- viding linen supplies to the health care industry at its facility in Milford, Connecticut, where it annual- ly receives products, goods, and materials valued in excess of $50,000 directly from points outside the State of Connecticut. The Company admits and we find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is labor organiza- tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 11 and 12 April 1985, the Union was certified on 12 February 1986 as the collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time hourly paid production and maintenance employees includ- ing truck drivers, warehouse employees, and leadpersons employed by the Employer at its Milford, Connecticut facility; but excluding all office clerical employees, casual employees, managerial employees, and all guards, profes- s Trustees of Masonic Hall, 261 NLRB 436 (1982) 4 In view of our decision , we deny the Company's Cross Motion for Summary Judgment sional employees, 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 Since 25 February 1986 the Union has requested the Company to bargain and to supply it with in- formation necessary for, and relevant to, the Union's performance of its function as the exclusive bargaining representative of the unit employees. Since 3 March 1986 the Company has refused. We find that these refusals constitute unlawful refusals to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 3 March 1986 to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appro- priate unit and to supply the Union with requested information necessary for, and relevant to, the Union's function as the exclusive bargaining repre- sentative of the unit employees, the Company has engaged in unfair labor practices affecting com- merce 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 Respondent to provide the Union, on request, the information it requested on 25 February 1986. 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).5 5 The General Counsel has requested a "visitorial clause" authorizing the Board, for compliance purposes, to obtain discovery from the Com- pany under the Federal Rules of Civil Procedure under the supervision of the United States Court of Appeals enforcing this Order Under the circumstances of this case, we find it unnecessary to include such a clause Accordingly, we deny the General Counsel's request Continued 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board orders that the Respondent, Angelica Healthcare Service Group, Inc., Milford, Connecticut, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Amalgamated Serv- ice and Allied Industries Joint Board, Amalgamat- ed Clothing and Textile Workers Union, AFL- CIO, CLC, as the exclusive bargaining representa- tive of the employees in the bargaining unit. (b) Refusing to supply the Union with requested information necessary for, and relevant to, the Union's function as the exclusive bargaining repre- sentative of the unit employees. (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 hourly paid production and maintenance employees includ- ing truck drivers, warehouse employees, and leadpersons employed by the Employer at its Milford, Connecticut facility; but excluding all office clerical employees, casual employees, managerial employees, and all guards, profes- sional employees, and supervisors as defined in the Act. (b) On request, furnish the Union with the infor- mation it requested on 25 February 1986. (c) Post at its facility in Milford, Connecticut, copies of the attached notice marked "Appendix."s The Union has filed a memorandum requesting that the Board provide the following additional remedies an order requiring the Company to mail a copy of the notice posted pursuant to the Order in this case to each employee who was on the payroll after the election date but is no longer on the payroll when the notice is posted, an order prohibiting the Company from conducting any investigatory interviews with employees unless it permits a union representative to attend the interview on request by the employee, and an order requiring the Company to abide by an interim grievance procedure The Respondent has filed a motion to strike the Union's memorandum , and alternatively argues that the additional remedies sought by the Union are unwarranted in this case We agree with the Respondent that, under the circumstances of this case, the addi- tional relief requested by the Union is unwarranted Accordingly, we deny the Union's request, and we find it unneccessary to pass on the Re- spondent's motion to strike 6 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 " Copies of the notice, on forms provided by the of- ficer in charge for Subregion 39, 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 officer in charge in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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 Amalga- mated Service and Allied Industries Joint Board, Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC, as the exclusive repre- sentative of the employees in the bargaining unit. WE WILL NOT refuse to provide the Union with requested information necessary for, and relevant to, the Union's performance of its duties as the ex- clusive 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: All full-time and regular part-time hourly paid production and maintenance employees includ- ing truck drivers, warehouse employees, and leadpersons employed by the Employer at its Milford, Connecticut facility; but excluding all office clerical employees, casual employees, managerial employees, and all guards, profes- sional employees, and supervisors as defined in the Act. WE WILL, on request, furnish the Union with the information necessary for, and relevant to, the per- ANGELICA HEALTHCARE SERVICES 867 formance of its duties as the exclusive representa- tive which it requested on 25 February 1986. ANGELICA HEALTHCARE SERVICES GROUP, INC.