Caswell-Masse Co.

348 NLRB No. 81 Caswell-Massey Co., Ltd. and United Steelworkers, AFL–CIO, United Steel, Paper And Forestry, Rubber, Manufacturing, Energy, Allied Indus- trial and Service Workers International Union. Case 22–CA–27548 November 30, 2006 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER This is a refusal-to-bargain case in which the Respon- dent is contesting the Union’s certification as bargaining representative in the underlying representation proceed- ing. Pursuant to a charge filed on August 31, 2006, the General Counsel issued the complaint on September 15, 2006, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain and to provide information following the Un- ion’s certification in Case 22–RC–12693. (Official no- tice is taken of the “record” in the representation pro- ceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the com- plaint and asserting an affirmative defense. On October 6, 2006, the General Counsel filed a Mo- tion for Summary Judgment and Memorandum in Sup- port. On October 17, 2006, 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 Respondent filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain and to furnish information that is alleged to be relevant and necessary to the Union’s role as bargaining representa- tive, but contests the validity of the Union’s certification based on its contention that the Board erred in finding appropriate a unit limited to the Respondent’s warehouse employees employed at its Edison, New Jersey facility. The Respondent argues that an appropriate unit must also include its clerical employees employed at the facility. In addition, the Respondent summarily denies that the information requested by the Union is necessary and relevant. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).1 We also find that there are no factual issues warranting a hearing with respect to the Union’s request for infor- mation. The complaint alleges, and the Respondent ad- mits, that by letter dated July 26, 2006, the Union re- quested the following information: 1. The Respondent’s Personnel Manual. 2. All other documents pertaining to the terms and conditions of employment for bargaining unit employees. Although the Respondent’s answer generally denies that the information requested is necessary for and rele- vant to the Union’s duties as the exclusive collective- bargaining representative of the unit employees, it is well established that all of the foregoing types of information are presumptively relevant for purposes of collective bargaining and must be furnished on request. See, e.g., Streicher Mobile Fueling, 340 NLRB 994, 995 (2003); Metro Health Foundation, 338 NLRB 802, 803 (2003). The Respondent has not asserted any basis for rebutting the presumptive relevance of the information. Instead, the Respondent’s refusal to provide the requested infor- mation is based entirely on its contention, rejected above, that the Union was improperly certified. Accordingly, we grant the General Counsel’s Motion for Summary Judgment, and will order the Respondent to bargain with the Union and furnish it with the requested information. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a New York corporation with a place of business in Edison, New Jer- sey, has been engaged in the sale and distribution of per- sonal care products from its Edison, New Jersey location and at locations in various states across the United States. 1 Member Schaumber dissented from the Board’s denial of the Re- spondent’s request for review of the Regional Director’s Decision and Direction of Election. He would have granted review based on the Board’s decision in Scholastic Magazines, Inc., 192 NLRB 461 (1971). While Member Schaumber remains of that view, he agrees that the Respondent has not presented any new matters that are properly liti- gable in this unfair labor practice case. See Pittsburgh Plate Glass Co. v. NLRB, supra. In light of this, and for institutional reasons, Member Schaumber agrees with the decision to grant the General Counsel’s Motion for Summary Judgment. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its business operations described above, purchased and received at its Edison, New Jersey facility goods and materials valued in excess of $50,000 directly from points outside the State of New Jersey. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that United Steelworkers, AFL–CIO, United Steel, Paper and Forestry, Rubber, Manufactur- ing, Energy, Allied Industrial and Service Workers Inter- national Union (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 July 14, 2006, the Union was certified on July 28, 2006, as the exclusive collec- tive-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time warehouse employ- ees employed by the Employer at its Edison, New Jer- sey facility, excluding all office clerical employees, professional employees, guards and supervisors as de- fined in the Act, and all other employees. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain By letters dated July 26, 2006, the Union requested that the Respondent meet and bargain with it as the ex- clusive collective-bargaining representative of the certi- fied unit and that the Respondent provide it with specific information, set forth above. The information requested by the Union is necessary for, and relevant to, the Un- ion’s performance of its duties as the exclusive collec- tive-bargaining representative of the unit. Since about August 2, 2006, the Respondent has failed and refused to meet and bargain with the Union and to furnish it with the requested information. We find that this failure and refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing, since August 2, 2006, to bargain with the Union as the exclusive collective-bargaining representa- tive of employees in the appropriate unit and to provide the Union with the requested information, the Respon- dent 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 Respon- dent to furnish the Union with the information requested by it. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certifi- cation as beginning on 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); and 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, Caswell-Massey Co., Ltd., Edison, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Steelworkers, AFL-CIO, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union as the exclusive bargaining representative of the employees in the bargaining unit. (b) Refusing to furnish the Union with information that is relevant and necessary to the performance of its duties 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 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 warehouse employ- ees employed by the Employer at its Edison, New Jer- sey facility, excluding all office clerical employees, professional employees, guards and supervisors as de- fined in the Act, and all other employees. (b) Furnish the Union with the information that it re- quested on July 26, 2006. (c) Within 14 days after service by the Region, post at its facility in Edison, New Jersey, copies of the attached CASWELL-MASEY CO. 3 notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since August 2, 2006. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that 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 vio- lated Federal labor law and has ordered us to post and obey this notice. 2 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” FEDERAL LAW GIVES YOU THE RIGHT TO Form, join or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain with United Steel- workers, AFL–CIO, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union as the exclusive bargaining representative of the employees in the bar- gaining unit. WE WILL NOT refuse to furnish the Union with infor- mation that is relevant and necessary to the performance of its duties as the exclusive bargaining representative of the unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise 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 fol- lowing bargaining unit: All full-time and regular part-time warehouse employ- ees employed by us at our Edison, New Jersey facility, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees. WE WILL furnish the Union with the information it re- quested on July 26, 2006. CASWELL-MASSEY CO., LTD.