Fused Solutions, LLC

FUSED SOLUTIONS, LLC 823 Fused Solutions, LLC and United Food and commer- cial Workers, District Union Local One. Case 03–CA–098461 May 28, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND MCFERRAN 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 United Food and Commercial Workers, District Union Local One (the Union) on February 15, 2013, the Acting General Coun- sel issued the complaint on February 22, 2013, alleging that Fused Solutions, LLC (the Respondent) has violated Section 8(a)(5) and (1) of the Act by refusing the Un- ion’s requests to recognize and bargain and to furnish relevant and necessary information following the Un- ion’s certification in Case 03–RC–083193. (Official notice is taken of the “record” in the representation pro- ceeding as defined in the Board’s Rules and Regulations, Sections 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. On May 6, 2013, the Board issued a Decision and Or- der in this proceeding, which is reported at 359 NLRB No.118 (not reported in Board volume). Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the District of Columbia Cir- cuit. At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally in- firm. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding that the challenged appoint- ments to the Board were not valid. Thereafter, the Board issued an order setting aside the Decision and Order, and retained this case on its docket for further action as ap- propriate. On November 26, 2014, the Board issued a further De- cision, Certification of Representative, and Notice to Show Cause in Cases 03–CA–098461 and 03–RC– 083193, which is reported at 361 NLRB 1016. That De- cision provided leave to the General Counsel to amend the complaint on or before December 8, 2014, to con- form with the current state of the evidence, including whether the Respondent had agreed to recognize and bargain with the Union after the November 26, 2014 cer- tification of representative issued. Notice was also given for the parties to show cause by January 12, 2015, why the motion should not be granted. On January 12, 2015, the Respondent filed an opposi- tion to the General Counsel’s motion, reiterating its posi- tion that the decision to overrule the election objections and certify the Union was made in error. On January 22, 2015, the General Counsel filed a mo- tion to amend the complaint, under Section 102.17 of the Board’s Rules and Regulations. Thereafter, on February 10, 2015, the Board issued an Order Granting Motion to Amend Complaint and Further Notice to Show Cause in which it accepted the amended complaint, and directed that the Respondent file an answer to the amended com- plaint on or before February 24, 2015, and that cause be shown, in writing, on or before March 3, 2015, as to why the General Counsel’s Motion for Summary Judgment should not be granted by the Board. On February 24, 2015, the Respondent filed an answer to the amended complaint, and on March 3, 2015, the General Counsel filed a response in support of the Motion for Summary Judgment.1 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 provide information, but contests the validity of the certi- fication on the basis of the issues raised in the representa- tion proceeding. 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 1 The amended complaint adds “November 26, 2014” as the date the Board certified the Union as the exclusive collective-bargaining repre- sentative of the unit employees, alleges that about January 30, 2013, and January 9, 2015, the Union requested that the Respondent recog- nize and bargain with it as the exclusive collective-bargaining repre- sentative of the unit employees, and alleges that since February 15, 2013, the Respondent has refused, and continues to refuse, to do so. The amended complaint repeats the allegations from the original com- plaint that the Respondent has failed, since February 15, 2013, to pro- vide the Union with information it requested on January 15 and 30, 2013. The amended answer admits the factual allegations of the complaint, reiterates the arguments made in the underlying representation proceed- ing that the Union engaged in conduct interfering with the results of the election, and argues for the first time that the Regional Director lacked authority to conduct the election at a time when the Board lacked a quorum. 362 NLRB No. 95 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 824 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 statements or descriptions regarding such personnel policies, prac- tices or procedures. (2) A copy of all company fringe benefit plans in- cluding, pension, profit sharing, severance, stock incen- tive, vacation, health and welfare, 401k Plan, legal ser- vices, child care or any other plans which relate 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 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 information. Rather, the Respondent admits that it con- tinues to refuse to provide the requested information and raises as an affirmative 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. As noted above, the Respondent also argues for the first time that the Regional Director lacked authority to conduct the election at a time when the Board lacked a quorum. We reject this argument. First, since the Re- spondent did not raise this issue previously, we find that the Respondent is estopped from challenging the authori- ty of the Regional Director at this time. See Mission Produce, 362 NLRB 79, 79 (2015). Moreover, the au- thority of a Regional Director to act in representation case proceedings is derived from a 1961 delegation from the Board, and that delegation has never been revoked. Thus, the Regional Director was fully empowered to process the representation petition and conduct the elec- tion in this matter without regard to the presence or ab- sence of a Board quorum. Id. See also Durham School Services, LP, 361 NLRB 702 (2014). 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 November 26, 2014, as the exclusive collective-bargaining representative of the employees 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- FUSED SOLUTIONS, LLC 825 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, and January 9, 2015, the Union, in writing, requested that the Respondent bargain collectively with it as the exclusive collective-bargaining representative of the unit. Since about February 15, 2013, and continuing to date, the Respondent has failed and refused to recognize and bargain with the Union as the unit employees’ exclusive collective-bargaining rep- resentative. 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, and continuing to date, the Re- spondent has failed and refused to furnish the Union with the requested information. 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 to recognize and bargain with the Union as the exclusive collective-bargaining repre- sentative of the employees in the unit and to furnish the Union with requested information regarding the terms and conditions of employment of unit employees, the Respondent has engaged in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.2 2 In Howard Plating Industries, 230 NLRB 178, 179 (1977), the Board stated: Although an employer’s obligation to bargain is established as of the date of an election in which a majority of unit employees vote for un- ion representation, the Board has never held that a simple refusal to in- itiate collective-bargaining negotiations pending final Board resolution of timely filed objections to the election is a per se violation of Section 8(a)(5) and (1). There must be additional evidence, drawn from the employer’s whole course of conduct, which proves that the refusal was made as part of a bad-faith effort by the employer to avoid its bargaining obligation. No party has raised this issue, and we find it unnecessary to decide in this case whether the unfair labor practice began on the date of Re- spondent’s initial refusal to bargain at the request of the Union, or at some point later in time. It is undisputed that the Respondent has con- tinued to refuse to bargain since the Union’s certification and we find that continuing refusal to be unlawful. Regardless of the exact date on 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. 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 Construction 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). 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 which Respondent’s admitted refusal to bargain became unlawful, the remedy is the same. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 826 employed by Respondent at its Potsdam, New York lo- cation; excluding all office clerical employees, confi- dential 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, 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 for Region 3 a sworn certifi- cation 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 violated Federal labor law and has ordered us to post and obey this notice. 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.” 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. 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 exclusive collective-bargaining representative of our employees 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 The Board’s decision can be found at www.nlrb.gov/case/03-CA-098461 or by using the QR code below. Alternatively, you can obtain a copy of the decision FUSED SOLUTIONS, LLC 827 from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.