United Scrap Metal PA, LLC

372 NLRB No. 107 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. United Scrap Metal PA, LLC and Laborers’ Interna- tional Union of North America, Local 57. Case 04–CA–315904 July 18, 2023 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS WILCOX AND PROUTY This is a refusal-to-bargain case in which the Re- spondent, United Scrap Metal PA, LLC, is contesting the Union’s certification as bargaining representative in the underlying representation proceeding. Pursuant to a charge filed on April 11, 2023, by Laborers’ Internation- al Union of North America, Local 57 (the Union),1 the General Counsel issued a consolidated complaint (com- plaint) on April 25, 2023, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refus- ing the Union’s request to recognize and bargain with it and to furnish relevant and necessary information follow- ing the Union’s certification in Case 04–RC–267642.2 (Official notice is taken of the record in the representa- tion proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(d). Frontier Ho- tel, 265 NLRB 343 (1982).) The Respondent filed an answer to the complaint, admitting in part and denying in part the allegations in the complaint and asserting affirm- ative defenses. On May 16, 2023, the General Counsel filed a Motion for Summary Judgment. On May 18, 2023, 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 an opposition to the Motion for Summary Judgment, and the General Counsel filed a reply to the Respondent’s opposition. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 1 The Respondent, in its answer to the complaint, states that it is without knowledge as to when the charge was filed but admits that it received a copy of the charge on or around April 12, 2023. A copy of the charge is attached as Exh. 10 to the General Counsel’s motion, showing the date as alleged, and the Respondent has not contested the authenticity of this document. 2 372 NLRB No. 49 (2023). In the underlying proceeding, Case 04– RC–267642 was consolidated for hearing with Cases 04–CA–268183 and 04–CA–269712. The administrative law judge in the underlying proceeding was sitting as a hearing officer with respect to the represen- tation issues. See Sec. 102.1(f) of the Board’s Rules and Regulations; see also NLRB Casehandling Manual (Part 2) Representation Proceed- ings, Sec. 11424.1. On March 30, 2023, the General Counsel filed an application for en- forcement of the Board’s Decision and Order in the underlying unfair labor practice proceedings with the United States Court of Appeals for the Third Circuit, and on April 26, 2023, the Respondent filed a cross- petition for review of that Order. These petitions are still pending. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain and to furnish requested information but contests the validity of the certification based on its objections to the election in the underlying representation proceeding. In addition, the Respondent denies that the information requested by the Union is necessary for and relevant to the Union’s performance of its duties as the exclusive collective- bargaining representative of the unit but does so based solely on its contention that the Union was not properly certified. 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).3 We also find that there are no factual issues warranting a hearing with respect to the Respondent’s refusal to fur- nish the Union with requested information. The com- plaint alleges, and the Respondent admits, that by email dated February 24, 2023, the Union requested the follow- ing information: 1. Name, title, address, telephone number, and email of any person who is required to approve any bargained- for provision of any collective bargaining agreement between Local 57 and the Company; 2. Name, title, address, telephone number, and email of any person who determines labor relations policy; 3. Name, address, telephone number . . . date of hire, classification, rate of pay, date of birth, sex (M/F), Full- Time or Part-Time status, termination date (if applica- ble), and number of dependents for each employee in the bargaining unit; (Please provide job ti- tle/classification/department.); 4. A complete structure of job classification and de- scriptions and responsibilities for each; 5. Average weekly number of employees and hours worked at each classification and rate; 6. Total annual labor cost; 7. Copies of all company paid time off and other poli- cies; (i.e.) vacation, overtime, holidays; 8. Copy of the employee handbook; 3 Chairman McFerran did not participate in the underlying proceed- ing. She agrees, however, that the Respondent has not raised any new matters or special circumstances warranting a hearing in this proceed- ing or reconsideration of the decision in the representation proceeding, and that summary judgment is therefore appropriate. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 9. Copies of all disciplinary policies; 10. A roster of employees’ health care and retirement contributions; 11. Copy of new hire orientation packets; . . . 13. Copies of the OSHA 300 log for the past two (2) years; 14. Any documents identifying the above requested in- formation if not otherwise produced. The complaint further alleges, and the Respondent admits, that since February 24, 2023, the Respondent has failed and refused to furnish the information requested by the Union. It is well established that information concerning the terms and conditions of employment of unit employees is presumptively relevant for purposes of collective bar- gaining and must be furnished on request. See, e.g., Metro Health Foundation, Inc., 338 NLRB 802, 803 (2002). The Respondent has not asserted any basis for rebutting the presumptive relevance of this information. We find, therefore, that the Respondent unlawfully re- fused to furnish the information sought by the Union. See, e.g., NP Sunset LLC d/b/a Sunset Station Hotel Ca- sino, 367 NLRB No. 62, slip op. at 1–2 (2019); CVS Al- bany, LLC d/b/a CVS, 364 NLRB No. 122, slip op. at 1 (2016), enfd. mem. 709 Fed.Appx. 10 (D.C. Cir. 2017) (per curiam); Metro Health Foundation, supra. Accordingly, we grant the Motion for Summary Judg- ment.4 On the entire record, the Board makes the following 4 The Respondent in its opposition argues that the instant complaint should be dismissed as moot because the unfair labor practice and certification issue present here have already been decided by the Board in its Decision and Order in the underlying proceeding (372 NLRB No. 49 (2023)) and are currently pending before the Third Circuit Court of Appeals. The Respondent asserts that the parties lack a legally cog- nizable interest in the outcome of the instant complaint because it does not seek any remedies that have not already been granted, as the Board has already certified the Union and ordered the Respondent to cease refusing and failing to bargain with the Union and to affirmatively bargain with it. Thus, the Respondent argues, since the affirmative bargaining remedy sought here has already been granted in the underly- ing proceeding, the Board should dismiss the instant complaint as moot and deny the Motion for Summary Judgment. We find the Respondent’s argument to be unavailing. As noted by the General Counsel in her reply, the instant case involves distinct unfair labor practices that were not previously at issue. The consolidat- ed complaint in the underlying proceeding alleged that the Respondent violated Sec. 8(a)(5) and (1) of the Act by unilaterally changing em- ployees’ work schedules without first notifying and bargaining with the Union. In contrast, the instant complaint alleges that the Respondent has been failing and refusing to bargain with the Union and to furnish information based on the Union’s February 24, 2023 request for both, following the Board’s certification of the Union in its February 8, 2023 decision in the underlying proceeding. Accordingly, the Respondent’s request that the complaint be dismissed is denied. FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a Penn- sylvania limited liability company with an office and place of business in Philadelphia, Pennsylvania (the fa- cility), and has been engaged in processing and market- ing recyclable commodities which are then sold to cus- tomers around the world. During the 12-month period preceding issuance of the complaint, in conducting its business operations de- scribed above, the Respondent sold and shipped from the facility goods valued in excess of $50,000 directly to points outside the Commonwealth of Pennsylvania. 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 is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification On February 8, 2023, the Board certified the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit: INCLUDED: All full-time and regular part-time la- borers, press operators, shear operators, welders, burn- ers, and hoist operators employed by the Employer at its 4301 Wissahickon Avenue, Philadelphia, Pennsyl- vania facility. EXCLUDED: All other employees, office clerical em- ployees, professional employees, managerial employ- ees, confidential employees, guards, 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 About February 24, 2023, the Union, by email, re- quested that the Respondent recognize and bargain col- lectively with the Union as the exclusive collective- bargaining representative of the unit. About March 1, 2023, the Union, by email, renewed its request. Since about February 24, 2023, the Respondent has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. About February 24, 2023, the Union, by email, re- quested in writing that the Respondent furnish it with the information described 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 24, 2023, the Respondent has failed and refused to furnish the requested information. We find that these failures and refusals constitute an unlawful failure and refusal to recognize and bargain UNITED SCRAP METAL PA, LLC 3 with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since February 24, 2023, 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 that is necessary for and relevant to the Union’s performance of its duties as the exclusive collective-bargaining representative of the Respondent’s 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 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 information it requested on February 24, 2023. 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); 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). In addition, the General Counsel requests that we adopt a compensatory remedy requiring the Respondent to make its employees whole for the lost opportunity to bargain at the time and in the manner contemplated by the Act. To do so would require overruling Ex-Cell-O Corp., 185 NLRB 107 (1970), and outlining a methodo- logical framework for calculating such a remedy. The Board has decided to sever this issue and retain it for further consideration to expedite the issuance of this de- cision regarding the remaining issues in this case. The Board will issue a supplemental decision regarding a make-whole remedy at a later date.5 See Kentucky River 5 In the Board’s Decision and Order in the underlying proceeding, the Board ordered the Respondent to post the Notice to Employees in English and Spanish and to read the Notice in English and Spanish to employees during worktime. The General Counsel requests that we provide these same remedies in the instant case, and the Respondent has not opposed this request. In accordance with the Board’s Order in the underlying proceeding and for the reasons expressed therein, we shall order the Respondent to post the Notice to Employees in both English and Spanish and to read the Notice in English and Spanish to employees at a meeting or meetings held during worktime. United Scrap Metal PA, LLC, 372 NLRB No. 49, slip op. at 1 fn. 3 (2023). Medical Center, 355 NLRB 643, 647 fn. 13 (2010); Ken- tucky River Medical Center, 356 NLRB 6 (2010). ORDER The National Labor Relations Board orders that the Respondent, United Scrap Metal PA, LLC, Philadelphia, Pennsylvania, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Laborers’ International Union of North America, Local 57 (the Union) as the exclusive collective-bargaining representative of the employees in the bargaining unit. (b) Refusing to bargain collectively with the Union by failing and refusing to furnish it with requested infor- mation that is relevant and necessary to the Union’s per- formance of its functions as the collective-bargaining representative of the Respondent’s 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 concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agree- ment: INCLUDED: All full-time and regular part-time la- borers, press operators, shear operators, welders, burn- ers, and hoist operators employed by the Employer at its 4301 Wissahickon Avenue, Philadelphia, Pennsyl- vania facility. EXCLUDED: All other employees, office clerical em- ployees, professional employees, managerial employ- ees, confidential employees, guards, and supervisors as defined in the Act. (b) Furnish to the Union in a timely manner the in- formation requested by the Union on February 24, 2023. (c) Post at its facility in Philadelphia, Pennsylvania, copies of the attached notice marked “Appendix” in Eng- lish and Spanish. Copies of the notice, on forms provid- ed by the Regional Director for Region 4, after being The General Counsel has further requested several additional reme- dies in this proceeding. Having ordered the customary remedies for test-of-certification cases and severed the Ex-Cell-O Corp. matter for future consideration, we decline to order, in this case, the additional remedies sought by the General Counsel in her Motion for Summary Judgment. The Respondent, in its opposition, has advanced several arguments challenging the General Counsel’s request that the Board provide a make-whole remedy here. In view of our determination to sever the Ex-Cell-O matter for future consideration, we decline to address these arguments in the instant case. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily post- ed. In addition to physical posting of paper notices, no- tices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily com- municates with its employees by such means. Reasona- ble steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of busi- ness or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own ex- pense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since February 24, 2023. (d) Hold a meeting or meetings during worktime at its facility in Philadelphia, Pennsylvania, scheduled to en- sure the widest possible attendance of employees, at which the attached notice marked “Appendix” will be read to employees in English and Spanish by a high- ranking management official of the Respondent in the presence of a Board agent and an agent of the Union if the Region or the Union so desires, or, at the Respond- ent’s option, by a Board agent in the presence of a high- ranking management official of the Respondent and, if the Union so desires, the presence of an agent of the Un- ion.6 (e) Within 21 days after service by the Region, file with the Regional Director for Region 4 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. Dated, Washington, D.C. July 18, 2023 Lauren McFerran, Chairman 6 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted and read within 14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial comple- ment of employees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notice must be posted and read within 14 days after the facility reopens and a substantial complement of employees has re- turned to work. If, while closed or not staffed by a substantial com- plement of employees due to the pandemic, the Respondent is com- municating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electroni- cally more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” 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 National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” Gwynne A. Wilcox, Member David M. Prouty, 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 Laborers’ International Union of North America, Local 57 (the Union) as the exclusive collective- bargaining representative of our employees in the bar- gaining unit. WE WILL NOT refuse to bargain collectively with the Union by failing and refusing to furnish it with requested information that is relevant and necessary to the Union’s performance of its functions as the collective-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 that understanding in a signed agreement: INCLUDED: All full-time and regular part-time la- borers, press operators, shear operators, welders, burn- ers, and hoist operators employed by us at our 4301 Wissahickon Avenue, Philadelphia, Pennsylvania facil- ity. UNITED SCRAP METAL PA, LLC 5 EXCLUDED: All other employees, office clerical em- ployees, professional employees, managerial employ- ees, confidential employees, guards, and supervisors as defined in the Act. WE WILL furnish to the Union in a timely manner the information requested by the Union on February 24, 2023. UNITED SCRAP METAL PA, LLC The Board’s decision can be found at www.nlrb.gov/case/04-CA-315904 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.