Hawaiian Flour Mill, Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1985

274 N.L.R.B. 1108 (N.L.R.B. 1985)

1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hawaiian Flour Mill, Inc . and ILWU Local 142.
Case 37-CA-2290
25 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Union, ILWU Local
142, on 18 October 1984 the General Counsel of
the National Labor Relations Board issued a com-
plaint on 9 November 1984 against Hawaiian Flour
Mill, Inc., the Respondent, alleging that it has vio-
lated Section 8(a)(5) and (1) of the National Labor
Relations Act
The complaint alleges that on 15 May 1984, fol-
lowing a Board election in Case 37-RC-2646, the
Union was certified as the exclusive collective-bar-
gaining representative of the Company's employees
in the unit found appropriate.' (Official notice is
taken of the "record" in the representation pro-
ceeding as defined in the Board's Rules and Regu-
lations, Secs. 102.68 and 102.69(g), amended Sept.
9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel,
265 NLRB 343, (1982).) The complaint further al-
leges that since 18 May 1984 the Company has re-
fused to provide the Union with requested informa-
tion relevant to collective bargaining and since that
date has refused to bargain with the Union. On 16
November 1984 the Company filed its answer ad-
mitting in part and denying in part the allegations
in the complaint; raised several affirmative de-
fenses, and requested dismissal of the complaint, an
award of its costs, and such other relief as the
Board deems proper.
On 3 January 1985 the General Counsel filed a
Motion to Strike Portions of Respondent's Answer
and Affirmative Defenses to Complaint and Notice
of Hearing and Motion for Summary Judgment.
On 8 January 1985 the Board issued an order trans-
ferring the proceeding to the Board and a Notice
to Show Cause why the motion should not be
granted. The Company filed a response.
Rulings on Motion to Strike and Motion for
Summary Judgment
In its answer to the complaint and in its opposi-
tion to the General Counsel's Motion to Strike Por-
tions of Respondent's Answer and Affirmative De-
fenses to Complaint and Notice of Hearing and
The unit is
All full time and regular part-time warehouse, maintenance utility
and sanitation employees, packers, drivers and millers of the Em-
ployer located at 73 N Nimit7 Highway, excluding confidential, pro-
fessional, clerical and supervisory employees, guards and/or watch-
persons as defined in the Act
Motion for Summary Judgment, the Company at-
tacks the validity of the certification on the basis of
its objection to the election in the representation
proceeding and therefore contends that the com-
plaint should be dismissed and the General Coun-
sel's Motion to Strike Portions of the Respondent's
Answer and Affirmative Defenses to Complaint
and Notice of Hearing and Motion for Summary
Judgment be denied It is the Respondent's position
that the Board should reconsider its certification
issued in the underlying representation case and re-
examine its approach to representation cases where
supervisory taint is alleged and proven. In addition,
the Company, while admitting that it has refused to
bargain, recognize, or supply information requested
by the Union, denies that the information requested
is relevant and necessary to the Union's perform-
ance of its function as collective-bargaining repre-
sentative. The Company further asserts that the
complaint fails to state a claim on which relief can
be granted; argues that the complaint is barred by
Section 10(b) of the Act, as well as waiver and
laches;2 and argues that it has, at all times, acted
legally and in accord with the Act. The General
Counsel argues that, aside from the Company's po-
sition on the relevancy of the information request-
ed by the Union and its 10(b) defense, which the
General Counsel contends are without merit, all
material issues have been previously decided. We
agree with the General Counsel.
The record, including the record in Case 37-
RC-2646, reveals that an election was held on 10
September 1981 pursuant to a Stipulation for Certi-
fication Upon Consent Election. The tally of bal-
lots shows that of approximately 33 eligible voters,
17 cast ballots for and 14 cast ballots against the
Union There were two challenged ballots, an in-
sufficient number to affect the results of the elec-
tion. The Company filed a timely objection to the
election on 16 September 1981. Acting pursuant to
Section 102 69 of the Board's Rules and Regula-
tions, the Acting Regional Director for Region 20
issued a Report on Objections and notice of hear-
ing to resolve the issues raised by the Company's
objection3 to the election. Thereafter, a hearing
2 We find no merit to the Respondent's defenses based on Sec 10(b),
waiver, and lashes We initially point out that the Respondent has failed
to submit any evidence or argument in support of any of these defenses
except to label them "legitimate and reasonable " We observe that the
Union's certification and information request and the Respondent's refusal
to bargain occurred within the 6 months preceding the filing of the in-
stant charge Thus, we reject these defenses in that the Respondent has
failed to sufficiently raise any issue relating to them
I By its objection, the Respondent alleged that the Union, by and
through its agents, in particular, Gordon Pascal and Thomas Reis, en-
gaged in and improperly condoned impermissible supervisory sponsorship
and electioneering in support of the Union during the critical period prior
to the election conducted by the Board
274 NLRB No 161
HAWAIIAN FLOUR MILL
was held on the objection filed by the Company.
On 17 September 1982 the hearing officer issued
his Report, on Objections and recommendation
wherein he recommended that the objection be
overruled. On 21 September 1982, the Company
filed exceptions to the recommendation. The Union
thereafter filed an answering brief with the Board.
On 15 May 1984 the Board adopted with clarifica-
tion the hearing officer's findings and recommenda-
tions and issued its Decision and Certification of
Representative (not reported in Board volumes).
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 that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S 146, 162
(1941), Secs. 102.67(f) and 102 62(c) of the Board's
Rules and Regulations
All issues raised by the Company in this pro-
ceeding concerning the Union's certification, and
hence the Respondent's bargaining obligation, were
or could have been litigated in the prior representa-
tion proceeding The Company does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board
to reexamine the decision made in the representa-
tion proceeding We therefore find that the Compa-
ny has not raised any issue that is properly litigable
in this unfair labor practice proceeding concerning
these issues. Accordingly, we find no merit to the
Respondent's defenses based on improper certifica-
tion of the Union
By letters dated 18 May 1984 and 12 October
1984, the Union requested the Company to furnish
it with information concerning the unit employees
and their terms and conditions of employment The
information requested by the Union includes the
names, addresses, titles, rates of pay, dates of hire,
age, and sex of all unit employees, the Respond-
ent's company house rules, the Respondent's job
descriptions; and the Respondent's company poli-
cies and past practices regarding certain terms and
conditions of employment.4 The General Counsel
alleges in the complaint that this information is
necessary for and relevant to the Union's perform-
ance of its function as the exclusive collective-bar-
gaining representative of the unit employees. The
Respondent in its answer to the complaint admits
' The policies and past practices pertained to medical coverage, life in-
surance, dental plan, pension plan, profit-sharing plan, sick leave benefits,
severance pay benefits, rest periods, fury duty pay, funeral leave pay,
holidays, vacations, daily and weekly hours of work, leaves of absence,
and updated seniority rosters
1109
the receipt of the information request but denies
the necessity for and relevancy of the information
sought by the Union. The Respondent further
admits that since 18 May 1984 it has failed and re-
fused to furnish the Union with the requested infor-
mation concerning the unit employees and their
terms and conditions of employment.
The information requested by the Union as it re-
lates to unit employees is presumptively relevant to
collective bargaining. Harco Laboratories, 271
NLRB 1397 (1984); Equitable Life Assurance Socie-
ty, 266 NLRB 732 (1983); Georgetown Holiday Inn,
235 NLRB 485 (1978) The Respondent has not re-
butted this presumption. Nor did the Respondent
raise issues of relevance or lack of necessity in de-
nying the Union's information request.5 For these
reasons, we find that the Union is entitled to the in-
formation requested to the extent that it pertains to
unit employees.
Accordingly, we find no merit to the Respond-
ent's first, second, fourth, and fifth defenses in its
answer nor to the Respondent's denial that the re-
quested information is relevant. We grant the Gen-
eral Counsel's Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company, an Oregon corporation, is en-
gaged in the business of food services, warehous-
ing, and manufacturing of flour for wholesale and
retail bakeries, institutional kitchens, and restau-
rants at its facility in Honolulu, Hawaii, where it
annually purchases goods and products valued in
excess of $50,000 from points outside the State of
Hawaii. We find the Company is an employer en-
gaged in commerce within the meaning of Section
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
Following the election held 10 September 1981
the Union was certified 15 May 1984 as the collec-
tive-bargaining representative of the employees in
the following appropriate unit.
All full time and regular part-time warehouse,
maintenance, utility and sanitation employees,
packers, drivers and millers of the Employer
5 In its opposition to the General Counsel's motion, the Respondent
failed to submit any support for its blanket assertion that the information
requested by the Union is not relevant to collective bargaining
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
located at 73 N. Nimitz Highway; excluding
confidential, professional, clerical and supervi-
sory employees, guards and/or watchpersons
as defined in the Act.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since 18 May 1984 the Union has requested the
Company to bargain and provide it with certain
relevant information concerning collective-bargain-
ing negotiations, and since 18 May 1984 the Com-
pany has refused to do so. We find that this refusal
constitutes an unlawful refusal to bargain in viola-
tion of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after 18 May 1984 to bargain
with the Union as the collective-bargaining repre-
sentative in the appropriate unit, and to provide it
with the requested relevant bargaining information,
the Company 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 provide the Union with the
requested relevant bargaining information, to bar-
gain on request with the Union, and, if an under-
standing is reached, embody the understanding in a
signed agreement.
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial period of the certification as beginning the date
the Respondent begins to bargain in good faith
with the Union. Mar-Jac Poultry Co., 136 NLRB
785 (1962); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that
the Respondent, Hawaiian Flour Mill, Inc., Hono-
lulu, Hawaii, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with ILWU Local 142 as
the exclusive bargaining representative of the em-
ployees in the bargaining unit.
(b) Refusing to provide the Union with informa-
tion that is necessary and relevant to the Union's
role as bargaining representative.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full time and regular part-time warehouse,
maintenance , utility and sanitation employees,
packets, drivers and millers of the Employer
located at 73 N. Nimitz Highway; excluding
confidential, professional, clerical and supervi-
sory employees, guards and/or watchpersons
as defined in the Act.
(b) Furnish the Union, pursuant to its 18 May
and 12 October 1984 letters, with the information
that is relevant and necessary to the Union' s role as
exclusive bargaining representative of the employ-
ees in the bargaining unit.
(c) Post at its facility in Honolulu, Hawaii,
copies of the attached notice marked "Appendix."s
Copies of the notice, on forms provided by the Re-
gional Director for Region 20, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
HAWAIIAN FLOUR MILL 1111
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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with ILWU
Local 142 as the exclusive representative of the
employees in the bargaining unit.
WE WILL NOT refuse to provide the Union with
information that is necessary and relevant to the
Union 's role as bargaining representative.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
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 bargaining unit:
All full time and regular part-time warehouse,
maintenance , utility and sanitation employees,
packers , drivers and millers of the Employer
located at 73 N. Nimitz Highway ; excluding
confidential , professional , clerical and supervi-
sory employees , guards and/or watchpersons
as defined in the Act.
WE WILL furnish the Union , pursuant to its 18
May 1984 and 12 October 1984 letters , with the in-
formation that is relevant and necessary to the
Union 's role as the exclusive bargaining representa-
tive of the employees in the bargaining unit.
HAWAIIAN FLOUR MILL, INC.