Oberthur Technologies of America Corporation

OBERTHUR TECHNOLOGIES OF AMERICA CORP. 673 364 NLRB No. 59 Oberthur Technologies of America Corporation and Local 14M, District Council 9, Graphic Com- munications Conference/International Brother- hood of Teamsters. Case 04–CA–160992 July 27, 2016 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA 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 September 29, 2015,1 by Local 14M, District Council 9, Graphic Com- munications Conference/International Brotherhood of Teamsters (the Union), the General Counsel issued the complaint on October 9, alleging that Oberthur Technol- ogies of America Corporation (Respondent) has violated Section 8(a)(5) and (1) of the Act by refusing the Un- ion’s request to recognize and bargain and to furnish relevant and necessary information following the Un- ion’s certification in Case 04–RC–086261.2 (Official notice 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(d). 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 affirmative defenses. On October 29, the General Counsel filed a Motion for Summary Judgment. On October 30, 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 provide information, but contests the validity of the certi- fication on the basis of its contentions, raised and reject- ed in the underlying representation proceeding, that the administrative law judge improperly found two voters to be professional employees, sustained the Union’s chal- lenges to their determinative ballots, and found the certi- fied bargaining unit appropriate.3 1 All dates are 2015 unless otherwise indicated. 2 362 NLRB 1820 (2015). 3 In the underlying proceeding, Case 04–RC–086261 was consoli- dated for hearing with Cases 04–CA–086325 and 04–CA–087233. The judge was sitting as a hearing officer with respect to the representation issues. See Sec. 102.6 of the Board’s Rules and Regulations; see also NLRB Casehandling Manual (Part 2) Representation Proceedings, Sec. 11424.1. The Respondent argues here, as in the underlying pro- ceeding, that the challenged voters were included in the stipulated unit. And, as in the earlier proceeding, it fur- ther contends, in the alternative, that if the two employ- ees are excluded as professional employees, then the stipulated unit impermissibly included professional and nonprofessional employees, without affording the profes- sional employees an opportunity to decide by majority vote whether to be included, and that another profession- al employee voted without challenge. In the underlying proceeding, the Board adopted the judge’s ruling sustain- ing the challenges to those ballots and found the Re- spondent’s alternative argument was untimely. All representation issues raised by the Respondent were or could have been litigated in the underlying repre- sentation proceeding. The Respondent does not offer to adduce 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.4 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 no factual issues warranting a hearing with respect to the Union’s request for information. The 4 In its answer to the instant complaint, the Respondent asserts the following affirmative defense: In addition, since the initial unfair labor practice complaint was initiat- ed by the Board’s former General Counsel, Lafe Solomon, in violation of the Federal Vacancies Reform Act, Solomon had no legal authority to issue such complaint. As a result, the NLRB incorrectly affirmed the allegations contained in that invalidly issued complaint. The Respondent’s answer does not elaborate further on this affirmative defense, and the Respondent does not address it in its response to the Notice to Show Cause. Thus, the Respondent does not clearly identify the complaint it alleges to be defective. We note that the complaint in this proceeding was issued under the authority of General Counsel Richard F. Griffin, Jr., on October 9, 2015. To the extent that the Re- spondent is referring to the consolidated complaint in Cases 04–CA– 086325 and 04–CA–087233, we reject the affirmative defense as an improper collateral attack on the Board’s unfair labor practice decision in those cases, and we reject as untimely the Respondent’s assertion that Acting General Counsel Solomon lacked authority in those pro- ceedings under the Federal Vacancies Reform Act, 5 U.S.C. §§ 3345 et seq. (FVRA). See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981) (voidable judgment based upon an erroneous view of the law not open to collateral attack); SW General v. NLRB, 796 F.3d 67, 82–83 (D.C. Cir. 2015) (FVRA objection addressed only because timely raised); St. Francis Regional Medical Center, 363 NLRB 608, 609 (2015) (FVRA argument rejected as “untimely effort to file addi- tional exceptions”). Finally, we find that the Respondent’s FVRA argument has no bearing on the underlying representation proceeding, in which the Regional Director was acting pursuant to a 1961 delega- tion of authority from the Board. 26 Fed. Reg. 3911 (May 4, 1961); see, e.g., Durham School Services, LP, 361 NLRB 702, 702 (2014). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 674 complaint alleges, and the Respondent admits, that on about September 24, by letter, the Union requested the following information: [A]ll names and addresses for all full-time employees currently working in the Bargaining Unit to include classifications and hourly rates. Any Company policies related to employment at Oberthur to include: job de- scriptions, hours of work, overtime, holidays, vacation, attendance, discipline, benefit plans, leave of absence and any other workplace policy that is a mandatory subject of bargaining. It is well established that the foregoing type of information concerning the terms and conditions of employment of unit employees is presumptively relevant for purposes of collec- tive bargaining and must be furnished on request. See, e.g., Metro Health Foundation, Inc., 338 NLRB 802, 803 (2003). The Respondent has not asserted any basis for rebutting the presumptive relevance of this information. Rather, the Re- spondent 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. Accordingly, we grant the Motion for Summary Judg- ment.5 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, a Delaware corporation with facilities in Chantilly, Virginia, Exton, Pennsylvania (the Exton facility), and Los Angeles, California, is engaged in the manufacture of plastic credit and identification cards. During the 12-month period preceding issuance of the complaint, a representative period, the Respondent sold and shipped goods valued in excess of $50,000 directly to points outside the Commonwealths of Virginia and Pennsylvania and the State of California. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and 5 Member Miscimarra dissented with respect to the Board’s disposi- tion of the representation case. He stated, among other things, that it would have best effectuated the purposes of the Act “to set aside the election, vacate the stipulation, and remand [the] proceeding to the Regional Director to resume processing of the petition by either assist- ing the parties to reach agreement on a new stipulation or, in the ab- sence of a new stipulation, conducting a hearing on the unit issue.” Oberthur Technologies of America Corp., 362 NLRB 1820, 1825–1826 (internal citation and quotation omitted). While Member Miscimarra 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. In light of this, Member Miscimarra agrees with the decision to grant the motion for summary judgment. (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification On August 27, the Board certified the Union as the ex- clusive collective-bargaining representative of the em- ployees in the following appropriate unit (the unit): Included: All full-time employees employed by the Employer in litho printing, finishing card and sheet, ink, facilities janitorial, card auditing plastics, pre-press composition, QC [quality control], smart card embed- ding, screen making, screen printing, production expe- ditor, quality systems analyst, warehouse plastic, cus- tomer service manufacturing, and maintenance depart- ments at its facility located at 523 James Hance Court, Exton, Pennsylvania. Excluded: All other employees, temporary and season- al employees, confidential employees, guards and su- pervisors 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 By letter dated September 1, the Union requested the Respondent to recognize it as the exclusive collective- bargaining representative of the unit and bargain with it concerning the wages, hours, and other terms and condi- tions of employment of the unit. About September 22, the Respondent notified the Union that the Respondent was testing the certification that the Board issued on Au- gust 27, and that the Respondent would not bargain with the Union. About September 24, by letter, the Union 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 September 24, and continuing to date, the Re- spondent has failed to provide the requested information. We find that the Respondent’s failure and refusal to bar- gain and provide the requested information constitutes an unlawful refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing since September 22 to recognize and bar- gain with the Union as the exclusive collective- bargaining representative of the employees in the appro- priate unit and by failing and refusing since September 24 to furnish the Union with requested information, the Respondent has engaged in unfair labor practices affect- OBERTHUR TECHNOLOGIES OF AMERICA CORP. 675 ing 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 Respond- ent to furnish the Union the information 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, Oberthur Technologies of America Corpo- ration, Exton, Pennsylvania its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Local 14M, District Council 9, Graphic Communications Conference/International Brotherhood of Teamsters as the exclusive collective-bargaining representative 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 its performance of its functions as the exclusive collective- 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 exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit on terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement: Included: All full-time employees employed by the Employer in litho printing, finishing card and sheet, ink, facilities janitorial, card auditing plastics, pre-press composition, QC [quality control], smart card embed- ding, screen making, screen printing, production expe- ditor, quality systems analyst, warehouse plastic, cus- tomer service manufacturing, and maintenance depart- ments at its facility located at 523 James Hance Court, Exton, Pennsylvania. Excluded: All other employees, temporary and season- al employees, confidential employees, guards and su- pervisors as defined in the Act. (b) Furnish to the Union in a timely manner the in- formation requested by it on September 24, 2015. (c) Within 14 days after service by the Region, post at its facility in Exton, Pennsylvania, copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms provided by the Regional Director for Region 4, 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. If the Respondent has gone out of business or closed the 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 September 22, 2015. (d) Within 21 days after service by the Region, file with the Regional Director for Region 19 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. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union 6 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 676 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 Local 14M, District Council 9, Graphic Communi- cations Conference/International Brotherhood of Team- sters 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 exclusive collective-bargaining representative of our unit employ- ees. 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 appropriate unit: Included: All full-time employees employed by the Employer in litho printing, finishing card and sheet, ink, facilities janitorial, card auditing plastics, pre-press composition, QC [quality control], smart card embed- ding, screen making, screen printing, production expe- ditor, quality systems analyst, warehouse plastic, cus- tomer service manufacturing, and maintenance depart- ments at its facility located at 523 James Hance Court, Exton, Pennsylvania. Excluded: All other employees, temporary and season- al employees, confidential employees, guards and su- pervisors as defined in the Act. WE WILL furnish to the Union in a timely manner the information it requested on September 24, 2015. OBERTHUR TECHNOLOGIES OF AMERICA CORPORATION The Board’s decision can be found at www.nlrb.gov/case/04–CA–160992 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.