Adair Standish Corp.

668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Adair Standish Corporation and Flint Local 282-C, Graphic Communications International Union, AFL-CIO. Case 7-CA-25973 17 April ;1987 DECISION AND ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT On 10 November 1986 Administrative Law Judge Bernard Ries issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief in re- sponse to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its ' authority in this proceeding to a three- member panel. The Board has considered the decision and -the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Adair Standish Corporation, Standish, Michigan, its offi- cers, agents, ,successors, and assigns, shall take the action set forth in the Order. Dwight R. Kirksey, Esq., for the General Counsel. Francis , T Coleman, Esq., and Scott R. Merrill, Esq. (Boothe, Prichard & Dudley), of Washington D.C., for the Respondent. Donald B. Greenspon, Esq. (Greenspon, Sheff & Washing- ton, P. C), of Detroit, Michigan, for the Charging Party. DECISION BERNARD RIES, Administrative Law Judge. This case was originally consolidated for hearing with Case 7-CA- 25059 by the Regional Director for Region 7, by his order consolidating cases, amended complaint and notice of hearing issued -on 16 July 1986. As explained in my order granting motion to sever, dated 5 November 1986, and 'attached hereto as Appendix A, I granted the Char- ing Party's motion to sever the two cases for the reason set out in that order. As' shown in that order, following an election won by the Union on 11 September 1986, a hearing was held on objections filed by Respondent in which the hearing offi- cer concluded that the objections were without merit, and a Certification of Representative issued by the Board on 27 May 1986.1 The Regional Director issued a com- i Not included in bound volumes . On 6 June, Respondent filed a motion for reconsideration of the Board's ruling; on 24 September, the Board denied the motion. plaint in this case, based on a charge filed by the Union on 26 June 1986 and, on 16 July, consolidated it for hear- ing with the outstanding complaint in Case 7-CA-25059. The complaint in the present case alleges that, since about 6 June 1986, Respondent has refused the 30 May request of the Union to commence bargaining collective- ly with it and to provide certain information to it. As the order granting motion' to sever makes clear, the Respondent does not contest that it has refused to bar- gain and to supply information, and the only apparent basis for these refusals is its belief that its objections in the representation proceeding should have been sus- tained. The Respondent has adduced no evidence or issues that it did not have the opportunity to litigate at the rep- resentation proceeding. There are no factual issues aside from the underlying objections themselves, because the record shows Respondent's refusal to engage in collec- tive-bargaining negotiations and to furnish the requested information.2 Accordingly, I concude that by its refusal to meet with the Union and to furnish relevant information to the Union, in and after June 1986, Respondent, has violated and is violating Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAw 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By virtue of the representation election of 11 Sep- tember 1985, the Union is the exclusive collective-bar- gaining representative of the employees in-the following appropriate unit: All full-time and regular part-time production and maintenance employees employed by Respond- ent at its facility at 4334 Airpark Drive, Standish, Michigan; but excluding office clerical employees, guards and supervisors as defined in the Act. 4. By refusing, on and after 6 June 1986, to recognize and bargain with the Union and to provide, relevant in- formation requested by it, Respondent has violated, and is violating, Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act, I shall recommend that it be ordered- to cease and desist therefrom, to bargain On 2 The Respondent does not challenge, and there can be no doubt, that the information requested in the Union's 30 May letter-a list of current employees with their dates of hire, current pay rates, current classifica- tions, holidays, vacation periods and qualifications therefor, fringe benefit plans, hours of work, and "all other conditions of employment"-.consti- tutes the kind of core data to which a union is presumptively entitled. E.g, Union Oil Mill, 280 NLRB No. 143, slip op. at 3, 4 (July 31, 1986) (not published in Board volumes). 283 NLRB No. 104 ADAIR STANDISH CORP. 669 request with the Union, and, if an understanding is reached, to embody the understanding in a signed agree- ment and to provide the Union, on request, the informa- tion it requested on 30 May 1986. To ensure that the employees are accorded the serv- ices of their selected bargaining agent for the period pro- vided by law, the initial period of the certification shall commence as 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). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondent, Adair Standish Corporation, Stand- ish, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Flint Local 282-C, Graphic Communications International Union, AFL- CIO (the Union), as the exclusive collective-bargaining representative of the employees in the following bargain- ing unit: All full-time and regular part-time production and maintenance employees employed by Respond- ent at its facility at 4334 Airpark Drive, Standish, Michigan; but excluding office clerical employees, guards and supervisors as defined, in the Act. (b) Refusing to supply the Union with requestd infor- mation necessary for, and relevant to, the Union's func- tion as the exclusive bargaining representative of the unit employees. (c) 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 concerning terms and conditions of employ- ment and, if an understanding is reached, embody the un- derstanding in a signed ' agreement: (b) Furnish the Union with information requested by it on 30 May 1981,6 in current form. (c) Post at its facility in Standish, Michigan, copies of the attached notice marked "Appendix B."4 Copies of s If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objgctions to them shall be deemed waived for all pur- poses. 4 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." the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's au•• thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con. secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable 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 Re- spondent has taken to comply. APPENDIX A ORDER GRANTING MOTION TO SEVER On 4 October 1985, the Charging Party filed a charge (Case 7-CA-25059) with Region 7, alleging that Re- spondent had violated Sections 8(a)(1), (3), and (5) of the Act by, about "13 Setpember 1983 [sic]," unilaterally changing conditions of employment and retaliating against employees by promulgating a new discipline policy, and, about 15 and 17 September discriminating against four named employees. On 16 October 1985, an amended charge alleging two more violations of Section 8(a)(1) and "(2)(3)" was filed, referring to unlawful solic- itation of employees to revoke membership cards since 3 October and unlawful surveillance, threats, and promises of benefits since June.' On 15 November; the Region issued a complaint based on these charges. The complaint included allegations that the Charging Party had been selected as the exclusive bargaining representative of employees in an identified bargaining unit on 11 September and, by virtue of a uni- lateral change in certain policies and by laying off em- ployees, Respondent had violated Section 8(a)(5). The complaint also contained several allegations of Section 8(a)(3) and (1), including alleged discrimination against four employees. The record shows that a representation election was held among the employees in the appropriate unit on 11 September 1985; that the tally of -ballots disclosed that the Charing Party had won the election; that the Re- spondent filed objections to the election that were over-, ruled by a hearing officer and thereafter by the Board, which, on 27 May 1986, issued a Certification of 'Repre-, sentative; and that the Respondent then filed with the Board a motion for reconsideration about 6 June 1986. The motion for reconsideraton was denied by the Board on 24 September. On 26 June 1986, the Charging Party filed a new charge (Case 7-CA-25973), in which it alleged that since; about 28 May 1986, the Respondent had violated Section 8(a)(5) in that it had "refused to bargain in good faith with the Union." On 16 July 1986, the Region consoli- dated the two cases and amended the existing complaint to allege that about 30 May 1986, the Union had request- ed the Respndent to "commence bargaining collectively" 1 A second amended, charge, making minor changes in the amended charge, was filed on 14 November. 670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD with it and to furnish it.with information concerning the number of employees, their hire dates, classifications, benefits, and other conditions of employment, all of which, since 6 June 1986, the Respondent, by letter, has refused to do. At the instant hearing, on 8 August 1986, Charging Party moved that the two cases be severed and that sep- arate decisions be issued for ,purposes of each complaint. Respondent opposed the motion; the General Counsel stated that I should exercise my discretion in the matter. I took the motion under advisement and authorized the parties to file briefs on the issue by 12 September.2 Briefs were thereafter filed by the Respondent and the Charging Party. After consideration, however, I con- cluded that the circumstances of the case were such that a ruling on the motion for severance was not ripe; at the time that we resumed (and completed) the case on 22 September, Respondent had not finished presenting its evidence,' and I thought it possible that Respondent might raise an issue or issues in doing so that would make severance inappropriate. Consequently, I deferred ruling on the motion until completion of the hearing. I have further deferred ruling on the motion prior to the filing of briefs in these cases, on the theories (1) that Re- spondent is entitled to file a brief in a completed case; and (2) that Respondent's brief might contribute some contention or insight that would affect the decision re- garding severance. Briefs were received from the parties about 3 November. Sections 102.33 (d) and 102.35 (h) of the Board's Rules and Regulatins, Series 8, as amended, authorize adminis- trative law judges to order the severance of proceedings prior to issuance of their decisions. This seems a proper situation in which to exercise that authority. Compare Quaker Tool & Die, Inc., 169 NLRB 1148 (1968), in which the Board did not deny the authority of an admin- istrative law judge to sever and decide after hearing, but, rather, only, disagreed with his decision to do so, given the facts before him. In refusing to recognize and bargain with the Union and to furnish information to it, Respondent appears to be engaging in what is usually referred to as a "techni- cal" refusal to bargain, based on the claim, already twice rejected by the Board, that the Union should not have been certified as the collective-bargaining representative in the first place. Respondent thus apparently intends to "test" the certification in a circuit court of appeals by re- fusing to acknowledge the validity of the Board's certifi- cation: E.g., NLRB v. San Jose Care & Guidance Center, 652 F.2d 856, 858 (9th Cir. 1981).3 2 The hearing was scheduled to adjourn until 22 September. S Respondent has not, in so many words ; stated that it was generally refusing to extend recognition and supply information, solely for the reason that it was testing the validity of the certification, but that conclu- sion is inescapable. In its answer to paragraph 10 of the original, com- plaint, which alleged that the Umon has been the exclusive collective- bargaining agent of the employees since the 11 September 1985 election, Respondent "deme[d] that the Charging Union was selected by an un- coerced majority of its employees" in the election, that the Union had not been certified, and "hence has not since September fl, 1985, been the exclusive representative" of the employees. In answer to paragraph 16 of the complaint, which alleges that since 13 September 1985, Respondent has refused to bargain by unilaterally changing personnel practices and Routinely, in a technical 8(a)(5) case free of other con- troverted issues, the General Counsel will file motion for summary judgment with the Board; the Board will issue a decision and order finding the employer quilty of a re- fusal to bargain (or of various refusals); the employer will not comply with the Board's cease-and-desist order; and the General Counsel will petition a court of appeals for enforcement of the Board's order.- In what may be anticipated to be a reasonably brief period, the court of appeals will decide whether the Board's certification was faulty or valid. In the first event, there may be required a new hearing, further consideration by the Board, or a nullification of the whole proceeding. In the second case, the employer must (short of a petition for certiorari to the Supreme Court) bargain with the union. In the great majority of cases, the issue is joined and conclusively set- tled relatively quickly, and the union will either capitu- late and decamp, mount' another organizing effort, or ex- ercise the court-affirmed right to represent the employ- ees. This same likelihood of a quick disposition is, of course, even greater if it should eventuate that Respond- ent chooses not to seek judicial review, but merely to ex- haust its avenues of relief solely before the Board. The possibility of a fairly prompt resolution of the rep- resentation issue becomes much more problematical if it is, as here, joined together with disputed allegations of violations of other sections of the Act. It is a fair wager that a determination of the separable and fundamental re- fusal-to-bargain question will be delayed by its inclusion in the overall complaint. My own schedule suggests that I might not issue a decision on the entire matter until well into the first part of 1'987;4 it seems probable that exceptions and briefs will then be filed with the'Board; the Board's busy docket, and unforeseeable internal dis- putes about the disposition of any one of the several issues presented by the case, may delay the Board's own laying off employees, Respondent replied that -it "is under no legal duty to bargain with the Charging Union and therefore denies that it has re- fused to bargain...." These responses were substantially repeated in the answer filed to the consolidated complaint, and Respondent ` simply filed denials to the new paragraphs regarding the refusal of-the May 1986 re- quests for bargaining and for information (other than to admit that the requests were made). However, in G.C. Exh. 20, Respndent's letter of 6 June 1986 replying to the Union's earlier requests to negotiate a contract and to receive information, counsel for Respondent, noting its pending motion for reconsideration before the- Board in the representation case, stated, "Accordingly, we see no need to engage in negotiations with your organization or provide the information requested until this matter has been finally adjudicated and resolved." Furthermore, in its interim brief on this point, Respondent , treating with the Charing Party's statement at the hearing that "there are no fac- tual disputes and it [the validity of the certification] is clearly a legal con- clusion," did not take issue with these assertions, but simply replied that it "remains unclear how such action [severance] will conserve the re- sources of the Board. It is also unclear exactly how such 'legal conclu- sion' is different from any of the other portions of the consolidated com- plaint from [sic] which these are no factual disputes . " (emphasis added). Finally, at no point in the hearing did Respondent make any claim or present any evidence (such as testimony that might tend to show that the Umon already had the information requested) that would signify that it was raising any issues other than its contention that the election was sub- ject to meritorious objections, and its most recent brief simply fails to refer to the May 1986 requests altogether 4 As noted above, briefs were not received until 3 November. ADAIR STANDISH CORP. 671 decision for an unpredictable length of time; and the same may be true of any, judicial review to follow. The Respondent argues indeed, it is basically Re- spondent's only argument-that severance of the cases would be at the expense of judicial economy. That is true, although the economics involved do not seem very large. But it appears to me that a more important value is implicated here. If one of the purposes of creating this administrative agency was to provide for a prompt reso- lution of questions of employees desire for representa- tion, then it would stand to reason that severance of the two cases clearly seems to be the more certain way of achieving that goal, without prejudicing any other signif- icant interest that comes to mind. The issue of the right to representation would quite likely be put to rest more quickly; the due process rights of the employer would be fully safeguarded; and the disposition of the remaining al- legations would not be affected. See Jessie Beck's River- side Hotel, 231 NLRB 907 (1977), 909 ("[A]s the alleged 8(a)(l) and (3) violations involved conduct occurring after the election and certification herein, which are the underpinnings of the 8(a)(5) and (1) violations alleged herein, we find that there was not abuse of discretion in the refusal to consolidate and that the Peyton Packing, [129 NLRB 1358 (1961)] and Jefferson Chemical [200 NLRB 992 (1972) precedents cited by the Respondent are distinguishable and inapposite.") Despite the foregoing, however, this case may seem, at first glance, to present special problems. As noted earlier, the original complaint issued in Case 7-CA-25059' al- leged that Respondent had refused to bargain collective- ly, in violation of Section 8(a)(5), "by unilaterally and without giving the Charging Party notice and- affording it a meaningful opportunity to bargain" with respect to changes in enforcement of its personnel policies and laying off employees since 13 September. The Charging Party has not moved to sever this allegation as well. One of the issues underlying it is the basic duty of the Re- spondent to bargain, which, of course, implicates the va- lidity of the election. If these allegations remain in the original complaint, and the other Case 7-CA-25973 8(a)(5) allegations are severed and treated as a separate proceeding, then, it may be argued, the validity of the election might be subject to testing 'in two different forums. I do not see this as a real problem, however. If the motion for severance is granted and the Board and the Court of Appeals for the Sixth Circuits should agree that Respondent has violated Section 8(a)(5) `by generally re- fusing to bargain, and by specifically refusing to provide information, it is difficult, to conceive that Respondent might later petition for review of any other 8(a)(5) alle- gations found against it by the Board by searching out another circuit in which to file its petition and there at- tempt to raise again the propriety of the certification- not only would few courts tolerate such naked forum- shopping, but they would probably also hold that, on the underlying question of the validity of the representation election, the matter was res judicata. The court in which the Board would seek to enforce its decision, see Section 10(e). It is,in' short, my, view that the motion for severance makes good sense and is a rational and healthy exercise of the flexibility intended to be a major characteristic of the administrative process. Accordingly, the motion is granted. The record in this case shall consist of the official record in Case 7-RC-17730;6 the charge in Case 7-CA- 25059 dated 4 October 1985, and the amended and second amended charges in that case (received in evi- dence in the consolidated unfair labor practice hearing as the, General Counsel Exhibits 1(a), 1(c), and 1(e)); the complaint and notice of hearing and Respondent's Answer thereto in Case 7-CA-25059 (received in evi- dence in the consolidated unfair labor practice hearing as the General Counsel Exhibits 1(g) and l(i)); the charge in Case 7-CA-25973 dated 26 June 1986 and the "Order Consolidating Cases, Amended Complaint and Notice of Hearing" in Cases 7-CA-25059 and 7--CA-25973, and Respondent's answer thereto (received as G.C. Exhs. 1(u), l(aa), and 1(cc)); General Counsel Exhibit 19, a letter from the Union to the Respondent dated 30 May 1986; and General Counsel Exhibit 20, a letter from the Respondent to the Union dated 6 June 1986.7 It is hereby ordered that the motion to sever Case 7- CA-25973 from Case 7-CA-25059 is granted; that the two cases shall henceforth be regarded as separate pro- ceedings; and that separate recommended Decisions shall be rendered by the administrative law judge in each such proceeding. 6 Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations and Statements of Procedure. 7 Although this letter might be read as simply a refusal to recognize and bargain until the Board had decided Respondent 's motion for recon- sideration filed that day, it also states that Respondent would not negoti- ate or provide information "until this matter has been finally adjudicated and resolved." If, by this, Respondent were only to mean that it did not intend to pursue its remedies beyond the level of the Board, that would be all the more reason to grant the Charging Party's motion APPENDIX B 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 or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Flint Local 282- C, Graphic Communications International Union, AFL- CIO (Union), as the exclusive collective-bargaining rep- resentative of the employees in the following bargaining unit: All full-time and regular part-time production and maintenance employees employed by Respond- ent at its facility at 4334 Airpark Drive, Standish, Michigan; but excluding office clerical employees, guards and supervisors as defined in the Act.. 672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT refuse to provide the Union with re- quested information necessary for, and relevant to, the Union's performance of its duties as the exclusive bar- gaining representative of the unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached regarding terms and conditions of employment for our employees in the aforesaid bargaining unit. WE WILL furnish the Union, as requested in its 30 May 1986 letter, the information necessary for, and relevant to, the performance of its duties as the exclusive bargain- ing representative of the employees in the bargaining unit. ADAIR STANDISH CORPORATION