Gitano Distribution Center

12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Orit Corporation/Sea Jet Trucking and APA Ware- houses, Inc. d/b/a Gitano Distribution Center and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO. Case 22-CA- 15294 March 8, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON Upon a charge filed by the Union on October 19, 1987, the General Counsel of the National Labor Relations Board issued a complaint on November 13, 1987, against the Company, the Respondent, al- leging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on September 8, 1987, following a Board election in Cases 22-RC-9646 and 22-RC-9705, the Union was certified as the ex- clusive collective-bargaining representative of the Company's employees in the unit found appropri- ate. (Official notice is taken of the "record" in the representation proceeding as defined in the Board's Rules and Regulations, Sees. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The com- plaint further alleges that since about September 8, 1987, the Company has refused to recognize and bargain with the Union and since about September 10, 1987, has refused to provide the Union with re- quested information necessary for, and relevant to, the Union's performance of its function as the ex- clusive bargaining representative of the unit em- ployees. Thereafter, the Company filed its answer admitting in part and denying in part the allega- tions in the complaint. On December 14, 1987, the General Counsel filed a Motion for Summary Judgment. On Decem- ber 16, 1987, 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 and response to the Notice to Show Cause, the Company admits that it refused the Union's request to recognize and bargain with the Union as the exclusive representa- tive of the employees in the certified unit. In de- fense of such conduct, the Company contests the validity of the Union's certification. Specifically, the Company argues: (1) that there was insufficient evidence in the record to establish jurisdiction; (2) that the certified unit is an inappropriate unit; and (3) that there was a contract bar to the election.' The General Counsel contends that the Company seeks to relitigate issues which were raised and de- cided in the prior representation case. We agree with the General Counsel. 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 Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(1) 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 In its answer the Company admits that the Union requested it to furnish certain information, but denies that the requested information is necessary for, and relevant to, the Union's performance of its function as the exclusive collective-bargaining rep- resentative of the unit employees and denies that it refused to furnish such information. 3 To the extent that the Company defends any refusal to furnish the requested information on the grounds that the underlying certification is invalid, we find such a The Company also asserts, in essence, that the Board abused its dis- cretion by resolving these issues in the representation proceeding rather than in a pending unfair labor practice proceeding and by declining, under the Freedom of Information Act (FOIA), to provide the Company with a copy of the Regional Office's request to the Board to proceed with the representation case despite the pending unfair labor practice charges We note that the Regional Director denied the Company's FOIA request and that thereafter the General Counsel denied the Com- pany's appeal of the Regional Director's action 2 In its opposition to the General Counsel's Motion for Summary Judg- ment, the Company summarily asserts that the record contains insuffi- cient evidence to establish jurisdiction. This issue, however, was litigated and decided in the underlying representation proceedmg and the Compa- ny does not now proffer an offer of proof concerning it nor does the Company raise any alleged "special circumstances" not previously con- sidered by the Board. 3 The General Counsel has submitted copies of letters from the Union to the Company, dated September 10 and 29 and October 9, 1987, in which the Union requested the Company to furnish information concern- ing the unit employees' dates of hire, classifications, job descriptions; sala- ries, dates, amounts, and reasons for salary increases over the prior 2 years; benefit plans; and other plans constituting terms and conditions of employment. We find that the Company's denial that it refused to pro- vide the requested information raises no issue requiring a hearing. The Company does not allege that it offered to furnish or, m fact, furnished such information, and it is clear that the Company is contesting the valid- ity of the Union's certification and admittedly is refusing to recognize and bargain with the Union. 288 NLRB No. 2 GITANO DISTRIBUTION CENTER 13 defense without merit for the reasons stated above. Further, it is well established that such information is presumptively relevant for purposes of collective bargaining and must be provided on request to the employees' collective-bargaining representative. 4 In addition, it is also well settled that a union is not required to show the precise relevance of such in- formation unless the employer has submitted evi- dence sufficient to rebut the presumption of rel- evance. The Company has not attempted to rebut the relevance of the information sought by the Union. Accordingly, we find that no material issues of fact exist with regard to the Company's refusal to furnish the requested information. 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. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION At all times material, Sea Jet Trucking and APA Warehouses, Inc., a corporation with an office and place of business in Brooklyn, New York, has been engaged in the operation of a warehouse and distri- bution facility. At all times material, Orit Corpora- tion, a corporation with an office and place of busi- ness in Edison, New Jersey, the Respondent's facil- ity, has been engaged in the operation of a ware- house and distribution facility. Orit Corporation!- Sea Jet Trucking, and APA Warehouse, Inc. d/b/a Gitano Distribution Center (the Respondent) are a single-integrated business enterprise and a single employer within the meaning of the Act. Orit Corporation/Sea Jet Trucking, and APA Ware- houses, Inc. d/b/a Gitano Distribution Center are a joint employer within the meaning of the Act with respect to warehouse employees at the Respond- ent's Edison, New Jersey facility. During the 12 months preceding issuance of the complaint, the Respondent in the course and conduct of its busi- ness operations performed services valued in excess of $50,000 in States other than the State of New Jersey. We find that the Company is an employer engaged in commerce within the meaning of Sec- tion 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. 4 Mobay Chemical Corp., 233 NLRB 109, 110 (1977), and cases cited therein at fn. 5. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the rerun election held August 31, 1987, the Union was certified September 8, 1987, as the collective-bargaining representative of the em- ployees in the following appropriate unit: The full-time and regular part-time warehouse employees employed by the Employer at its Edison, New Jersey warehouse, excluding all office clerical employees, professional employ- ees, 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. Refusals to Bargain Since about September 8, 1987, the Union has re- quested the Company to recognize it and bargain, and since about that date the Company has refused. Since about September 10, 1987, the Union has re- quested the Company to furnish it with information necessary for, and relevant to, the Union's perform- ance of its function as the exclusive collective-bar- gaining representative of the unit employees, and since that date 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 since about September 8, 1987, to recognize and bargain with the Union as the exclu- sive collective-bargaining representative of the em- ployees in the appropriate unit and by refusing since about September 10, 1987, to furnish the Union requested information, the Company has en- gaged 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 furnish the Union with the information requested. 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 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 ORDER The National Labor Relations Board orders that the Respondent, Orit Corporation/Sea Jet Truck- ing and APA Warehouses, Inc. d/b/a Gitano Dis- tribution Center, Edison, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with the International Union, United Automobile, Aero- space and Agricultural Implement Workers of America (UAW), AFL-CIO as the exclusive bar- gaining representative of the employees in the bar- gaining unit, and refusing to furnish the Union with information necessary for, and relevant to, the Union's performance of its function as the exclusive collective-bargaining representative of the unit em- ployees. (b) 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, recognize and bargain with the Union as the exclusive representative of the em- ployees in the following appropriate unit on terms and conditions of employment and, if an under- standing is reached, embody the understanding in a signed agreement: The full-time and regular part-time warehouse employees employed by the Employer at its Edison, New Jersey warehouse, excluding all office clerical employees, professional employ- ees, guards and supervisors as defined in the Act. (b) On request, furnish the Union with informa- tion necessary for, and relevant to, the Union's per- formance of its function as the exclusive collective- bargaining representative of the unit employees. (c) Post at its facility in Edison, New Jersey, copies of the attached notice marked "Appendix." 5 The General Counsel requests a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure subject to the supervision of the United States court of appeals enforcing this Order. Under the cir- cumstances of this case, we find it unnecessary to include such a clause. Accordingly, we deny the General Counsel's request See Cherokee Marine, 287 NLRB 1080 (1988) 6 If this Order is enforced by a judgment of a Umted States court of appeals, the words in the notice reading "Posted by Order of the Nation- Copies of the notice, on forms provided by the Re- gional Director for Region 22, 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. 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 recognize and bargain with International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), AFL-CIO, as the exclusive rep- resentative of the employees in the bargaining unit and WE WILL NOT refuse to provide the Union with requested information necessary for, and rele- vant to, the Union's function as the exclusive repre- sentative of the unit employees. 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, recognize and bargain with the Union and put in writing and sign any agreement reached on terms and conditions of em- ployment for our employees in the bargaining unit: The full-time and regular part-time warehouse employees employed by the Employer at its Edison, New Jersey warehouse, excluding office clerical employees, professional employ- ees, guards and supervisors as defined in the Act. WE WILL, on request, furnish the Union with the information necessary for, and relevant to, the GITANO DISTRIBUTION CENTER 15 Union's performance of its function as the exclusive representative of the unit employees. ORIT CORPORATION/SEA JET TRUCK- ING AND APA WAREHOUSES, INC. D/B/A GITANO DISTRIBUTION CENTER