Southeast Work Traning Center

SOUTHEAST WORK TRAINING CENTER 487 Southeast Association for Retarded Citizens, Inc., d/ b/a Southeast Work Training Center and Cali- fornia Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 21-CA-18647 August 25, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon a charge filed on February 1, 1980, by California Teamsters, Public, Professional & Medi- cal Employees Union, Local 911, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, herein called the Union, and duly served on Southeast Association for Retarded Citizens, Inc., d/b/a Southeast Work Training Center, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint and notice of hearing on March 14, 1980, against Respondent, alleging that Re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this pro- ceeding. With respect to the unfair labor practices, the complaint alleges in substance that on January 11, 1980, following a Board election in Case 21-RC- 16097, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about January 23, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On March 25, 1980, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint. On April 10, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 14, 1980, the Board issued an order transferring the Official notice is taken of the record in the representation proceed- ing. Case 21-RC-16097. as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations. Series 8, as amended. See LTV Electrosyotems. Inc., 166 NLRB 938 (1967). enfd 388 F2d 683 (4th Cir 1968): Golden 4ge Beverage Co.. 167 NLRB 151 (1967). enfd 415 F 2d 26 (5th Cir 1969); Interrype Co. v Penello, 269 F Supp. 573 (DCVa 1967): Folett Corp, 164 NLRB 378 (1967), enfd 397 F.2d 91 (7th Cir 1968): Sec 9(d) ofr the NLRA. as amended 251 NLRB No. 70 proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed an opposition to the Motion for Summary Judgment. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment On January 16, 1980, the Union sent a letter to Respondent requesting certain information which it claimed was relevant to the collective-bargaining process. 2 On January 23, 1980, Respondent, by letter, informed the Union that it would not bar- gain with respect to the unit of employees found appropriate by the Regional Director, and that it would not furnish the information requested by the Union. Based upon Respondent's refusal to bargain with the Union and to fuirnish the requested infor- mation, the Regional Director issued the complaint herein. In its answer to the complaint, Respondent admits the request and the refusal to bargain. How- ever, Respondent, in its opposition to the Motion for Summary Judgment, in substance attacks the validity of the Board's certification in the underly- ing representation proceeding by contending that the Regional Director erred in finding jurisdiction appropriate over its operations based on the $50,000 indirect outflow standard. s In this connec- tion, Respondent avers that its operations are chari- table and entirely local in character, and therefore that they do not affect commerce within the mean- ing of the Act. The General Counsel contends that Respondent is seeking to relitigate matters previ- ously litigated in the underlying representation pro- ceeding; that there are no factual issues warranting a hearing; and that Respondent does not offer to adduce any newly discovered or previously un- available evidence. The General Counsel submits The information requested included the following: I. Names, classifications, and wage rates for all employees in the bar- gaining unit. 2. Monthly cost per employee for: (a) Health Insurance (b) Dental Insurance (c) Retirement Plan 3. Average hourly wage rate for all unit employees. 4. Annual cost per employee for: (a) Holidays (b) Vacations (c) Sick leave 5. Average hourly cost per unit employee 6. Annual total cost of wages and fringes for unit employees. 7. Payroll tax for unit employees expressed in percentage of payroll I Siemons Mailing Service, Inc., 122 NLRB 81 (1958). 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that, as there are no litigable issues of fact, the Board should grant his Motion for Summary Judg- ment. Review of the record herein, including the record in Case 21-CA-16097, reveals that on De- cember 4, 1979, after a hearing in which Respond- ent participated, the Regional Director issued a Decision and Direction of Election in which he found jurisdiction appropriate over Respondent using the $50,000 indirect outflow standard of Sie- mons Mailing Service, supra, and found the unit of employees requested by the Union to be an appro- priate one for collective bargaining. Thereafter, Respondent filed a timely request for review of the Regional Director's decision, alleging in substance that the Regional Director's jurisdictional finding was improper. By telegraphic order dated January 3, 1980, the Board denied Respondent's request for review. It therefore appears that Respondent is at- tempting to relitigate in this proceeding issues fully litigated and determined in the representation pro- ceeding. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding. 4 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we find that Re- spondent has at all times material herein refused to recognize and bargain with the Union, upon re- quest, and that its refusal to do so is violative of Section 8(a)(5) and (1) of the Act. In this proceeding, Respondent defends its refus- al to bargain with the Union and to furnish the re- quested wage, fringe benefit, and employment in- formation pertaining to the bargaining unit employ- ees on grounds, inter alia, that the Board's assertion of jurisdiction is improper and that, in any event, the Union has not demonstrated the relevance to collective bargaining of the requested information. As indicated above, Respondent's jurisdictional ar- guments were fully litigated in the prior representa- tion proceeding. As for Respondent's contention I See Pittsburgh Plate Glass Co. v N.L.R.B.. 313 U.S. 146, 162 (1941) Rules and Regulations of the Board, Secs 102 67(f) and 102.6 9(a) that the Union failed to establish the relevance of the information it requested, we note it is settled that wage, fringe benefit, and employment data concerning bargaining unit employees is presump- tively relevant for the purposes of collective bar- gaining, and must be provided upon request to the employees' bargaining representative. 5 It is also well settled that a union is not required to show the precise relevance of such information unless the employer has submitted evidence sufficient to rebut the presumption of relevance. 6 Here, Respondent has not attempted to rebut by proffer of proof the relevance of the information sought by the Union. Rather, Respondent claims that a hearing is neces- sary to provide the opportunity for it to contest the complaint's allegation that the requested informa- tion is relevant for purposes of collective bargain- ing. Moreover, in its letter of January 23, 1980, Re- spondent declined to furnish the requested informa- tion solely because of its belief that jurisdiction had been improperly asserted over its operations. Ac- cordingly, we find that no material issues of fact exist with regard to Respondent's refusal to furnish the wage, fringe benefit, and employment data sought by the Union through its letter of January 16, 1980, and that its refusal to do so violated Sec- tion 8(a)(5) and (1) of the Act. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT At all times material herein, Respondent, a non- profit California corporation, has been engaged in the business of providing training for mentally re- tarded adults in Los Angeles, California, and oper- ates a work activity center at 9501 Washburn Road, Downey, California. During the past fiscal year preceding issuance of the complaint, which period is representative of all times material herein, Respondent sold and shipped products valued in excess of $50,000 to customers located within the State of California, each of which, in turn, sold or shipped products valued in excess of $50,000 directly to customers located out- ' Western Electric. Inc., 225 NLRB 1374 (1976); Hotel Enterprises, Inc.. d/b/a Royal Inn of South Bend, 224 NLRB 810 (1976); Warehouse Foods, A Division of M.E. Carter and Company. Inc., 223 NLRB 506 (1976); Building Construction Employers ,4ssociation of Lincoln. .ebraska. et al., 185 NLRB 34 (1970); Cowles Communications, Inc., 172 NLRB 1909 (1968); Curtiss-Wright Corp., 145 NLRB 152 (1963), enfd. 347 F.2d 61 (3d Cir. 1965). B Curtiss-Wright Corp., supra, 347 F.2d at 69. Thus, if the information is of potential or probable relevance, the General Counsel need not make a showing that the information sought is clearly relevant to or clearly dis- positive of the negotiating issues between the parties. See Western Massa- chusetts Electric Company, 228 NLRB 607 (1977) SOUTHEAST WORK TRAINING CENTER 489 side the State of California, or purchased goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Califor- nia. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE I.ABOR ORGANIZATION INVOI.VED California Teamsters, Public, Professional & Medical Employees Union, Local 911, Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor orga- nization within the meaning of Section 2(5) of the Act. tII. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All instruction supervisors, instruction supervi- sor aides, truck drivers, warehousemen and maintenance mechanics employed by the Em- ployer at its work training center located at 9501 Washburn Road, Downey, California; ex- cluding all other employees, office clerical em- ployees, guards and supervisors as defined in the Act. 2. The certification On January 3, 1980 a majority of the employees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Re- gional Director for Region 21, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on January 11, 1980, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and To Furnish Relevant Information and Respondent's Refusal Commencing on or about January 16, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about January 23, 1980, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit, and has refused to furnish the Union information relevant to collective bargaining. Accordingly, we find that Respondent has, since January 23, 1980, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. We shall also order that Respondent, upon request, furnish the Union the information re- quested in its letter of Janaury 16, 1980. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: 490 I)lCISI()NS OF NAI()NAL LABOR RELAI'IONS BO)ARD CONCLUSIONS 01 LAW 1. Southeast Association for Retarded Citizens, Inc., d/b/a Southeast Work Training Center, is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. California Teamsters, Public, Professional & Medical Employees Union, Local 911, Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. All instruction supervisors, instruction supervi- sor aides, truck drivers, warehousemen and mainte- nance mechanics employed by the Employer at its work training center located at 9501 Washburn Road, Downey, California; excluding all other em- ployees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Since January 11, 1980, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about January 23, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By refusing on or about January 23, 1980, and at all times material thereafter, to bargain collec- tively with the above-named labor organization as the exclusive bargaining representative of all em- ployees of Respondent in the appropriate unit by refusing to furnish wage, fringe benefit, and em- ployment information concerning said unit employ- ees, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) of the Act. 7. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerce, and is interfering with, restraining, and coercing, em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has engged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Southeast Association for Retarded Citizens, Inc., d/b/a Southeast Work Training Center, Downey, California, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with California Team- sters, Public, Professional & Medical Employees Union, Local 911, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All instruction supervisors, instruction supervi- sor aides, truck drivers, warehousemen and maintenance mechanics employed by the Em- ployer at its work training center located at 9501 Washburn Road, Downey, California; ex- cluding all other employees, office clerical em- ployees, guards and supervisors as defined in the Act. (b) Refusing to bargain collectively with the above-named labor organization by refusing to fur- nish the said labor organization with the wage, fringe benefit, and employment information con- cerning unit employees. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Upon request, bargain collectively with the above-named labor organization by furnishing it with the wage, fringe benefit, and employment in- formation requested in its letter of January 16, 1980. (c) Post at Downey, California, copies of the at- tached notice marked "Appendix." 7 Copies of said the I n o Ih n e that this ()rder is enfiorced hb a Judgn ll Iof a Uniled States Court of' Appeals. the .¥ords in the notice reading "Posted by ( tltled -- ---- SO)UTHEAST WORK TRAINING CENTER R 41 I notice, on forms provided by the Regional Direc- tor for Region 21, after being duly signed by Re- spondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. MEMBER PENF II.1o, dissenting: For the reasons fully explicated in my dissenting opinions in Lighthouse for the Blind of Houston, 244 NLRB No. 155 (1979), and The Rhode Island Catholic Orphan Asylum a/k/a St. Aloysius Home, 224 NLRB 1344 (1976), 1 would not assert jurisdic- tion over Respondent. Accordingly, I would deny the General Counsel's Motion for Summary Judg- ment. Order of the Nalional l.abor Relations Hoard" shall read "P'sted I'ursu- anl to a Judgment of the United States Court of Appeals Erlfoircilg 1an Order of the National Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with California Teamsters, Public, Professional & Medical Employees Union, Local 911, Inter- national Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive representative of the employ- ees in the bargaining unit described below. WI: WI I1 NO' in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. W WIIl., upon request, bargain with the above-namied Union, as the exclusive repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All instruction supervisors, instruction su- pervisors aides, truck drivers, warehousemen and maintenance mechanics employed by the Employer at its work training center lo- cated at 9501 Washburn Road, Downey, California; excluding all other employees, office clerical employees, guards and super- visors as defined in the Act. WE WIlll NOT refuse to bargain collectively with the above-named labor organization by refusing to furnish it with the wage, fringe benefit, and employment information it has re- quested with respect to the employees in the unit described above. WE Wn.IIL, upon request, bargain collectively with the above-named labor organization by furnishing it with the information requested in its January 16, 1980, letter. SOUTHEAST ASSOCIATION FOR RE- TARDED CITIZENS, INC., D/B/A SOUI'HEAST WORK TRAINING CENTER