Fused Solutions, LLC

359 NLRB No. 118 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Fused Solutions, LLC and United Food and Commer- cial Workers, District Union Local One. Case 03–CA–098461 May 6, 2013 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN AND BLOCK 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 by the Union on February 15, 2013, the Acting General Counsel issued the complaint on February 22, 2013, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s requests to recognize and bargain and to furnish relevant and necessary infor- mation following the Union’s certification in Case 03– RC083193. (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 denying in part the allegations in the complaint, and asserting affirmative defenses. On March 21, 2013, the Acting General Counsel filed a Motion for Summary Judgment. On March 25, 2013, 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. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain and to provide information, but contests the validity of the certi- fication on the basis of the issues raised in the representa- tion proceeding. The Respondent also argues that the Board lacks a quorum because the President’s recess appointments are constitutionally invalid, the complaint is ultra vires because the Acting General Counsel and the Regional Director did not lawfully hold those offices at the time that the complaint was filed, and that the Board, the Acting General Counsel and the Regional Director have no authority to act in this proceeding.1 1 For the reasons stated in Bloomingdale’s Inc., 359 NLRB No. 113 (2013) and Sub-Acute Rehabilitation Center at Kearny d/b/a Belgrove Post Acute Care Center, 359 NLRB No. 77 (2013), these arguments are rejected. 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). We also find 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 January 15, 2013, the Union requested the following information: A. 1) Employee’s Name 2) Employee’s Rate of Pay 3) Employee’s Job Classification 4) Employee’s date of hire 5) Employee’s date of birth 6) Employee’s status (full time and part time) B. 1) Total hours worked per employee over the last 12-month period. 2) Overtime Hours worked over the last 12- month period. C. 1) A copy of all current company personnel poli- cies, practices or procedures including any state- ments or descriptions regarding such personnel poli- cies, practices or procedures. 2) A copy of all company fringe benefit plans in- cluding, pension, profit sharing, severance, stock in- centive, vacation, health and welfare, 401k Plan, le- gal services, child care or any other plans which re- late to the employees. 3) Copies of all current job descriptions. D. Copies of any Company Wage or Salary Plans. E. Identify each employee’s choice of health care. F. Cost per month per employee to the employee who selects Health Insurance. G. Cost per month per employee to the employer to provide Health Insurance. The complaint further alleges, and the Respondent admits, that by letter dated January 30, 2013, the Union requested a list of all current employees along with home addresses and phone numbers, and work schedules for the next 2 weeks. It is well established that the foregoing type of infor- mation concerning the terms and conditions of employ- ment of unit employees is presumptively relevant for DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 purposes of collective bargaining and must be furnished on request. See, e.g. Metro Health Foundation, Inc., 338 NLRB 802 (2003). The Respondent has not asserted any basis for rebutting the presumptive relevance of the in- formation. Rather, the Respondent raises as an affirma- tive defense its contention, rejected above, that the Union was improperly certified. We find that the Respondent unlawfully refused to furnish the information sought by the Union. Accordingly, we grant the Motion for Summary Judg- ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a lim- ited liability company with an office and place of busi- ness in Potsdam, New York (the facility) where it oper- ates a call center. Annually, the Respondent, in conducting its operations described above, purchases and receives at its Potsdam, New York facility goods valued in excess of $50,000 directly from points outside the State of New York. 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, United Food and Commercial Workers, District Union Local One, 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 July 26, 2012, the Union was certified on January 11, 2013, as the exclusive collective-bargaining representative of the em- ployees in the following appropriate unit: All full-time and regular part-time Level 1, Level 2, and Level 3 customer service support technicians em- ployed by Respondent at its Potsdam, New York loca- tion; excluding all office clerical employees, confiden- tial employees, guards, and professional employees and supervisors as defined in the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain On about January 30, 2013, the Union, by letter, re- quested that the Respondent bargain collectively with it as the exclusive collective-bargaining representative of the unit. Since about February 15, 2013, the Respondent has failed and refused to recognize and bargain with the Union as the unit employees’ exclusive collective- bargaining representative. About January 15 and 30, 2013, the Union, by letters, requested that the Respondent furnish it with the infor- mation set forth above that is necessary for, and relevant to, the Union’s performance of its duties as the exclusive collective-bargaining representative of the unit. Since about February 15, 2013, the Respondent has failed and refused to furnish the Union with the requested infor- mation. We find that these failures and refusals constitute an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since about February 15, 2013, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the unit and to furnish the Union with requested infor- mation regarding the terms and conditions of employ- ment of unit employees, the Respondent has engaged 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 recognize and bargain on request with the Un- ion and, if an understanding is reached, to embody the understanding in a signed agreement. We shall also or- der the Respondent to furnish the Union with the infor- mation it requested.2 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); accord: Burnett Construc- tion Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). 2 The Respondent contends that the remedy requested by the Acting General Counsel and granted here is “punitive and would cause an undue hardship. . . because negotiating with the improperly certified union will unduly disrupt business operations.” Respondent’s opposi- tion to the Motion for Summary Judgment, p. 15, fn. 3. For the reasons set forth above, we reject the Respondent’s contention. 3 FUSED SOLUTIONS ORDER The National Labor Relations Board orders that the Respondent, Fused Solutions, LLC, Potsdam, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with United Food and Commercial Workers District Union Local One as the exclusive collective-bargaining repre- sentative of the employees in the bargaining unit. (b) Failing and refusing to furnish the Union with re- quested information that is relevant and necessary to the Union’s performance of its functions as the collective- bargaining representative of the Respondent’s unit em- ployees. (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 exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agree- ment: All full-time and regular part-time Level 1, Level 2, and Level 3 customer service support technicians em- ployed by Respondent at its Potsdam, New York loca- tion; excluding all office clerical employees, confiden- tial employees, guards, and professional employees and supervisors as defined in the Act. (b) Furnish to the Union in a timely manner the in- formation requested by the Union on January 15 and 30, 2013. (c) Within 14 days after service by the Region, post at its facility in Potsdam, New York, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 3, 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. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, 3 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." and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed its facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since February 15, 2013. (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. Dated, Washington, D.C. May 6, 2013 Mark Gaston Pearce, Chairman Richard F. Griffin, Jr., Member Sharon Block, Member (SEAL) 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 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 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 United Food and Commercial Workers, District Union Local One as the exclusive collective-bargaining representative of our employees in the bargaining unit. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 WE WILL NOT fail and refuse to furnish the Union with requested information that is relevant and necessary to the Union’s performance of its functions as the collec- tive-bargaining representative of our 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 as the ex- clusive collective-bargaining representative of our em- ployees in the following appropriate unit concerning terms and conditions of employment and, if an under- standing is reached, embody the understanding in a signed agreement: All full-time and regular part-time Level 1, Level 2, and Level 3 customer service support technicians em- ployed by us at our Potsdam, New York location; ex- cluding all office clerical employees, confidential em- ployees, guards, and professional employees and su- pervisors as defined in the Act. WE WILL furnish to the Union in a timely manner the information requested by it on January 15 and 30, 2013. FUSED SOLUTIONS, LLC