DIRECTV U.S. DIRECTV Holdings LLC

246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 358 NLRB No. 33 DIRECTV U.S. DIRECTV Holdings LLC and Inter- national Association of Machinists and Aero- space Workers, AFL–CIO, District Lodge 947. Case 21–CA–071591 April 16, 2012 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HAYES AND GRIFFIN This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge filed on December 28, 2011, the Acting General Counsel issued a complaint on January 11, 2012, alleging that the Respondent has vio- lated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain and to furnish requested in- formation following the Union’s certification in Case 21–RC–21191. (Official notice is taken of the “record” in the representation proceeding 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 deny- ing in part the allegations in the complaint, and asserting affirmative defenses. On January 26, 2012, the Acting General Counsel filed a Motion for Summary Judgment. On January 27, 2012, 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, and the Union filed a Joinder in Motion for Summary Judgment and Request for Additional Remedies. 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 certification on the basis of its objections to conduct alleged to have affected the results of the election in the representation proceed- ing. In addition, the Respondent asserts that there are genuine issues of material fact as to the relevance of some of the information requested by the Union. 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 most of the items in the Union’s request for information. By letter dated December 24, 2011, the Union requested the following information from the Respondent: 1. A list of current employees including their names, dates of hire, rates of pay, job classification, last known address, phone number, date of comple- tion of any probationary period, and employee iden- tification number. 2. A copy of all current company personnel poli- cies, practices or procedures. 3. A statement and description of all company personnel policies, practices or procedures other than those mentioned in Number 2 above. 4. A copy of all company fringe benefit plans in- cluding pension, profit sharing, severance, stock in- centive, vacation, health and welfare, apprenticeship, training, legal services, child care or any other plans which relate to the employees. 5. Copies of all current job descriptions. 6. Copies of any company wage or salary plans. 7. Copies of all disciplinary notices, warnings or records of disciplinary personnel actions for the pe- riod of April 1, 2010 to present. 8. A statement and description of all wage and salary plans which are not provided under number 6 above. 9. A list of all employees who worked in the bargaining unit from April 1, 2010 to present who no longer work in the unit including their names, dates of hire, rates of pay, job classification, last known address, phone number, date of completion of any probationary period, and employee identification number and termination date and last date work [sic]. 10. A copy of all customer complaints made about any employee in the unit and/or any work or jobs performed by any unit employee for the period April 1, 2010 to present. Please provide a copy of 1 Member Hayes dissented from the Board’s Decision and Certifica- tion of Representative in the underlying representation proceeding. He would have sustained the Employer’s Objection 1, set aside the election results, and directed a second election. While Member Hayes remains of that view, he agrees that the Respondent has not presented any new matters that are properly litigable in this unfair labor practice case. See Pittsburgh Plate Glass Co. v. NLRB, supra. Therefore, Member Hayes agrees with the decision to grant the Motion for Summary Judgment. DIRECTV U.S. DIRECTV HOLDINGS LLC 247 all reports and all records with respect to each such complaint including any company investigatory files, memo [sic] or documents referring to each complaint. 11. A copy of and [sic] personnel rules, practices which were in existence on April 16, 2010 and which have been changed or modified in any way since that date. 12. A list of all current routes serviced by each member of the unit. 13. All job requirements for unit employees in- cluding any goals or minimum standards. 14. Any manuals or documents describing the work to be performed including any documents de- scribing the installation and repair work done by unit members or provide [sic] to them or made available to them. 15. Any documents showing the productivity of field technicians in the unit for the period April 1, 2010 to present. 16. All evaluations of unit employees for the pe- riod January 1, 2010 to present. 17. All employee consultation forms issued with respect to any employee in the unit for the period April 1, 2010 to present. 18. All manager notes for the period of April 1, 2010 to present showing or mentioning any disci- pline including but not limited to verbal warnings. 19. Please [sic] the union access to the company intranet to the same degree unit employees have such access so the Union can review what material is available to all employees. The Respondent does not object to the requests in par- agraphs 1, 2, 4, 5, 6, 11, 13, and 14. With respect to the remaining requests, however, the Respondent contends that the information sought is not presumptively relevant, and relevance has not been established. The Respondent asserts that the requested information is not presumptive- ly relevant because it relates to employees who are not part of the bargaining unit. In addition, the Respondent asserts that requests for information dating back to April 2010 are not presumptively relevant because it is “out- side the six month statute of limitations for the Union to file an unfair labor practice charge or otherwise chal- lenge any discipline issued that long ago.” It is well established that although a union’s infor- mation request might not be specifically limited to bar- gaining unit employees and therefore could be construed as requesting information pertaining to nonunit as well as unit employees, this does not justify an employer’s blan- ket refusal to comply with the union’s request. See Streicher Mobile Fueling, 340 NLRB 994, 995 (2003), affd. mem. 138 Fed. Appx. 128 (11th Cir. 2005) (failure to limit request to bargaining unit information did not excuse noncompliance with request as to unit employ- ees); Superior Protection Inc., 341 NLRB 267, 269, enfd. 401 F.3d 282 (5th Cir. 2005), cert. denied 546 U.S. 874 (2005) (employer may not simply refuse to comply with an ambiguous or overbroad information request, but must request clarification or comply to the extent it en- compasses necessary and relevant information). In such cases, the Board will construe a request that seeks information that is otherwise presumptively rele- vant as pertaining to unit employees, even though the information requested is not consistently described in these specific terms. See, e.g., Metro Health Founda- tion, Inc., 338 NLRB 802, 803 fn. 2 (2003) (partial deni- al of summary judgment on information request did not excuse failure to provide other, clearly relevant, infor- mation, which Board construed to pertain to unit em- ployees); Freyco Trucking, Inc., 338 NLRB 774, 775 fn. 1 (2003) (request for payroll records and benefit fund payments construed to pertain to unit employees). Ac- cordingly, we find that the assertion that the information request pertained to nonunit employees does not excuse the Respondent’s failure to comply with the request to the extent that it could be construed to pertain to unit employees.2 To the extent that this information request pertains to nonunit employees, we deny the motion for summary judgment and remand that issue to the Regional Director for further appropriate action. In addition, because the representation election was held on April 16, 2010, the Union has represented the unit employees as of that date. We agree with the Re- spondent that, to the extent the information requests seek information prior to April 16, 2010, that information is not presumptively relevant, and we remand that issue to the Regional Director for further appropriate action. However, information dating back to the date of the elec- tion is presumptively relevant to the Union’s role as bar- gaining representative. Accordingly, we construe the 2 In par. 3 of the information request, the Union seeks “[a] statement and description of all company personnel policies, practices or proce- dures other than those mentioned in Number 2 above.” By construing the Union’s requests to pertain only to unit employees, we find that the Respondent is not obligated to produce any information in response to par. 3 to the extent that such information is duplicative of information provided in response to par. 2. Similarly, in par. 8 of the information request, the Union seeks “[a] statement and description of all wage and salary plans which are not provided under number 6 above.” By con- struing the Union’s requests to pertain only to unit employees, we find that the Respondent is not obligated to produce any information in response to par. 8 to the extent that such information is duplicative of information provided in response to par. 6. Moreover, should any requested document contain information unrelated to unit employees, the Respondent may redact such information. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 248 Union’s information requests as dating back to April 16, 2010.3 In paragraph 10, the Union requests copies of customer complaints and reports and records relating to the com- plaints. It has not been established that the requested information is presumptively relevant.4 Accordingly, we deny summary judgment with respect to paragraph 10 and remand that issue to the Regional Director for fur- ther appropriate action. Further, in paragraph 19, the Union requests “access to the company intranet to the same degree unit employees have such access so the Union can review what material is available to all employees.” The Board has not passed on whether information posted on a company intranet is presumptively relevant, and we decline to pass on that question in this motion for summary judgment proceed- ing, without the benefit of a full record. Accordingly, we deny summary judgment with respect to paragraph 19 of the Union’s information request and remand that issue to the Regional Director for further appropriate action. For the reasons set forth above, we grant the Motion for Summary Judgment and order the Respondent to bar- gain with the Union and to furnish the Union with the information it requested, with the exception of infor- mation pertaining to nonunit employees; information predating the election held on April 16, 2010; infor- mation relating to customer complaints, requested in par- agraph 10; access to the Company’s intranet, requested in paragraph 19; and information that is duplicative of information provided in response to paragraphs 1, 2, and 6, as described in footnotes 2 and 3 above. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a California corporation, with an office and place of business located 3 Par. 9 seeks certain information concerning employees who worked in the bargaining unit from April 1, 2010, to the present who no longer work in the unit, which is the same information requested in par. 1 as it relates to current employees. We limit the information that is required to be produced to that involving current employees, dating from April 16, 2010. Further, the Respondent need not provide infor- mation in response to par. 9 to the extent that it is duplicative of infor- mation provided in response to par. 1 of the request. 4 Further, to the extent that some of the requested information consti- tutes “witness statements,” the Respondent is not required to produce such statements, and resolution of this issue would require an analysis of facts not presented here. See El Paso Electric Co., 355 NLRB 428, 428 fn. 3 (2010) (Board relied on judge’s analysis of New Jersey Bell Telephone Co., 300 NLRB 42 (1990), in finding that requested infor- mation was not a witness statement and respondent violated Sec. 8(a)(5) by failing to produce it); Hawaii Tribune-Herald, 356 NLRB 661, 663 (2011) (Board solicited briefs concerning issue of what consti- tutes “witness statements”). at 19335 South Laurel Park Road, Rancho Dominguez, California (the facility), has been engaged in the business of providing digital television entertainment services to residential and commercial customers. During the 12- month period ending January 4, 2012, a representative period, the Respondent, in conducting its business opera- tions described above derived gross revenues in excess of $100,000, and purchased and received at its Rancho Dominguez, California facility goods valued in excess of $50,000 directly from points outside the State of Califor- nia. 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 the Union, International Associa- tion of Machinists and Aerospace Workers, AFL–CIO, District Lodge 947, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election held on April 16, 2010, the Union was certified on December 22, 2011, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time production installation technicians, field technicians, service technicians, piece work techni- cians, who service and install satellite dishes, ware- house employees, dispatchers, and quality control em- ployees, employed by the Respondent at its facility lo- cated at 19335 South Laurel Park Road, Rancho Dominguez, CA; excluding all other employees, ad- ministrative clerical employees, confidential employ- ees, managerial employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Sec- tion 9(a) of the Act. B. Refusal to Bargain Since December 24, 2011, the Union has requested that the Respondent bargain with it, and, since December 28, 2011, the Respondent has refused to do so. We find that this failure and refusal constitutes an unlawful fail- ure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. Since December 24, 2011, the Union has requested that the Respondent furnish it with specific information, and, since December 28, 2011, the Respondent has re- fused to do so. The information requested by the Union, except as described above, is necessary for, and relevant to, the Union’s performance of its duties as the exclusive DIRECTV U.S. DIRECTV HOLDINGS LLC 249 collective-bargaining representative of the unit. We find that this failure and refusal to provide necessary and rel- evant information constitutes an unlawful failure and refusal to recognize and bargain with the Union in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since December 28, 2011, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit and to furnish the Union with re- quested information, the Respondent has engaged in un- fair labor practices affecting commerce within the mean- ing 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 Respond- ent to furnish the Union with the requested information, with the exception of information pertaining to nonunit employees; information predating the election held on April 16, 2010; information relating to customer com- plaints, requested in paragraph 10; access to the compa- ny’s intranet, requested in paragraph 19; and information that is duplicative of information provided in response to paragraphs 1, 2, and 6, as described in footnotes 2 and 3 above. 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 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). The Union requests additional remedies that impose a series of extraordinary and specific conduct requirements on the Respondent. The Acting General Counsel has not joined this request. There has been no showing that the Board’s traditional remedies will not sufficiently amelio- rate the effect of the refusal to bargain and information request violations committed by the Respondent. In our view, the Respondent’s violations were not so numerous, pervasive, and outrageous that special or extraordinary remedies are needed to dissipate fully the coercive effect of these violations. Accordingly, we deny the Union’s request for additional remedies. ORDER The National Labor Relations Board orders that the Respondent, DIRECTV U.S. DIRECTV Holdings LLC, Rancho Dominguez, California, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with International Association of Machinists and Aerospace Workers, AFL–CIO, District Lodge 947, as the exclusive collective-bargaining representative of the employees in the bargaining unit. (b) Refusing to furnish the Union with information that is relevant and necessary to its role as the exclusive col- lective-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 production installation technicians, field technicians, service technicians, piece work techni- cians, who service and install satellite dishes, ware- house employees, dispatchers, and quality control em- ployees, employed by the Respondent at its facility lo- cated at 19335 South Laurel Park Road, Rancho Dominguez, CA; excluding all other employees, ad- ministrative clerical employees, confidential employ- ees, managerial employees, guards and supervisors as defined in the Act. (b) Furnish the Union with the information requested by the Union in its letter dated December 24, 2011, with the exception of information pertaining to nonunit em- ployees; information predating the election held on April 16, 2010; information relating to customer complaints, requested in paragraph 10; access to the company’s in- tranet, requested in paragraph 19; and information that is duplicative of information provided in response to para- graphs 1, 2, and 6, as described in footnotes 2 and 3 above. (c) Within 14 days after service by the Region, post at its facility in Rancho Dominguez, California, copies of the attached notice marked “Appendix.”5 Copies of the 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 250 notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondent’s au- thorized representative, shall be posted by the Respond- ent and maintained for 60 consecutive days in conspicu- ous places, including all places where notices to employ- ees are customarily posted. In addition to physical post- ing of paper notices, notices shall be distributed electron- ically, such as by email, posting on an intranet or an in- ternet site, and/or other electronic means, if the Respond- ent customarily communicates with its employees by such means.6 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 its 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 December 28, 2011. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing 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. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 6 For the reasons stated in his dissenting opinion in J. Picini Floor- ing, 356 NLRB 11, 16 (2010), Member Hayes would not require elec- tronic distribution of the notice. Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to recognize and bargain with International Association of Machinists and Aero- space Workers, AFL–CIO, District Lodge 947, as the exclusive collective-bargaining representative of the em- ployees in the bargaining unit. WE WILL NOT refuse to furnish the Union with infor- mation that is relevant and necessary to its role as the exclusive collective-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 listed above. 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 production installation technicians, field technicians, service technicians, piece work techni- cians, who service and install satellite dishes, ware- house employees, dispatchers, and quality control em- ployees, employed by the Respondent at its facility lo- cated at 19335 South Laurel Park Road, Rancho Dominguez, CA; excluding all other employees, ad- ministrative clerical employees, confidential employ- ees, managerial employees, guards and supervisors as defined in the Act. WE WILL furnish the Union with the information re- quested by the Union in its letter dated December 24, 2011, with the exception of information pertaining to nonunit employees; information predating the election held on April 16, 2010; information relating to customer complaints, requested in paragraph 10; access to the Company’s intranet, requested in paragraph 19; and in- formation that is duplicative of information provided in response to paragraphs 1, 2, and 6. DIRECTV U.S. DIRECTV HOLDINGS LLC