Spring Arbor Distribution Co.

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 710 (N.L.R.B. 1993)

710
312 NLRB No. 119
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We shall modify the notification paragraph of the judge’s rec-
ommended Order to correct an inadvertent error.
1 Respondent’s answer admits that the underlying charge in this
proceeding was filed by International Union, United Automobile
Aerospace and Agricultural Implement Workers of America (UAW),
AFL–CIO (the Union) on January 11, 1993, and served on Respond-
ent on January 12, 1993. The answer also admits that an amended
charge in this proceeding was filed and served on Respondent on
February 2, 1993.
Spring Arbor Distribution Company and Inter-
national Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica (UAW), AFL–CIO. Case 7–CA–34106
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On July 13, 1993, Administrative Law Judge Robert
W. Leiner issued the attached decision. The Respond-
ent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings, and conclusions and to adopt the rec-
ommended Order as modified.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, Spring Arbor
Distribution Company, Belleville, Michigan, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
Substitute the following for paragraph 2(f).
‘‘(f) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.’’
Joseph P. Canfield, Esq., for the General Counsel.
David B. Gunsberg, Esq. (Gunsberg & Breskin, P.C.), of
Bloomfield Hills, Michigan, for the Respondent.
Brenda Paton, Organizer, Region 1(A), United Automobile
Workers, of Taylor, Michigan, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This mat-
ter was heard in Detroit, Michigan, on June 2, 1993, on Gen-
eral Counsel’s complaint dated February 11, 1993,1 which al-
leges, in substance, that Spring Arbor Distribution Co., the
Respondent, violated Section 8(a)(5) of the Act by refusing
to recognize and bargain with the Union as the exclusive col-
lective-bargaining representative of unit employees; and by
refusing to furnish certain information to the Union which in-
formation was allegedly necessary for and relevant to the
Union’s performance of its duties as the exclusive collective-
bargaining representative of the unit employees.
Respondent’s timely filed answer denies certain allegations
of the complaint, admits others, but denies the commission
of unfair labor practices.
At the hearing, all parties were represented by counsel or
otherwise were given full opportunity to call and examine
witnesses, to submit relevant oral and written evidence, and
to argue orally on the record. At the close of the hearing,
all parties waived final argument and requested the oppor-
tunity to submit posthearing briefs. Respondent submitted a
timely brief which has been duly considered.
On the entire record, including Respondent’s brief, and on
the entire record of evidence established here, I make the fol-
lowing
FINDINGS OF FACT
I. RESPONDENT AS A STATUTORY EMPLOYER
The complaint alleges and Respondent admits that at all
material times Respondent, a corporation with an office and
place of business in Belleville, Michigan, has been engaged
in the nonretail distribution of religious books and related
materials. It admits that during the calendar year ending De-
cember 31, 1992, Respondent, in conducting its aforesaid
business operations, sold and shipped from its Michigan fa-
cility goods and materials valued in excess of $50,000 di-
rectly to points outside the State of Michigan. Finally, Re-
spondent admits, and I find, that at all material times Re-
spondent has been engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE UNION AS STATUTORY LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that,
at all material times, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Chronology
1. On April 9, 1991, International Union, United Auto-
mobile Aerospace and Agricultural Implement Workers of
America (UAW), AFL–CIO, the Charging Party, filed a peti-
tion for certification (Case 7–RC–19552) as the exclusive
collective-bargaining representative of a unit of Respondent’s
employees located at Respondent’s Belleville, Michigan fa-
cility, and on April 30, 1991, the Regional Director for Re-
gion 7 of the National Labor Relations Board approved a
Stipulated Election Agreement executed by the parties.
2. On June 7, 1991, an election by secret ballot was held
in the following collective-bargaining unit:
All full-time and regular part-time production employ-
ees including checkers, packers, receivers, shelvers,
shippers, stock controllers, processing employees, selec-
tors, and warehouse employees employed by the Re-
spondent at its facility located at 10885 Textile Road,
Belleville, Michigan, but excluding all office clerical
employees, confidential employees, professional em-
ployees, customer service employees, computer entry
711SPRING ARBOR DISTRIBUTION CO.
employees, guards and supervisors as defined in the
Act.
3. On April 8, 1992, the aforesaid election was set aside
(Member Oviatt dissenting) based on the Respondent’s ob-
jectionable conduct.
4. On April 24, 1992, the Regional Director scheduled a
second election for May 28, 1992.
5. On May 13, 1992, Respondent requested that the Board
review the Regional Director’s Direction of Election and to
stay the election alleging, inter alia, that contemplated
changes in the unit had rendered the certified unit no longer
appropriate.
6. On May 27, 1992, the Board denied the Respondent’s
request for review.
7. On May 28, 1992 the Board conducted a second elec-
tion in the above-described unit.
8. On May 28, as a result of the election, the tally of bal-
lots showed, inter alia, that of 123 eligible voters, there were
90 determinative challenges filed by Respondent.
9. On July 1, 1992, the Regional Director issued his Re-
port and Recommendations on Determinative Challenges and
Objections in Case 7–RC–19552.
10. On July 28, 1992, Respondent filed exceptions to the
Regional Director’s July 1, 1992 report and recommendations
as described above in paragraph 8.
11. On September 25, 1992, the Board issued its supple-
mental decision wherein it overruled Respondent’s challenges
and directed the Regional Director to open the 90 challenged
ballots and issue a revised tally of ballots.
12. On October 6, 1992, the Regional Director, complying
with the Board’s Order, issued a revised tally of ballots
wherein of the 123 eligible unit voters, 72 voted in favor of
the Union, 47 voted against the Union, and there were 4
undeterminative challenged ballots.
13. On October 14, 1992, the Board certified the Charging
Party as the exclusive collective-bargaining representative in
the above unit found appropriate for bargaining within the
meaning of Section 9(b) of the Act.
14. At all times since the aforesaid October 14, 1992 cer-
tification, the Union has been the exclusive collective-bar-
gaining representative of the employees in the above appro-
priate unit for purposes of Section 9(a) of the Act.
15. On October 28, 1992, the Union addressed a letter to
Respondent wherein, inter alia, it noted that the Union had
been certified as the exclusive bargaining representative, of
unit employees; and (2) formally requested Respondent to
furnish to it the following information ‘‘in order to enable
the parties to enter into a constructive and productive set of
negotiations to reach an acceptable agreement’’: (a) current
list of all bargaining unit employees; (b) the average total
labor cost per hour per employee; (c) current list of all fringe
benefits provided to employees in the past 3 years; (d) cur-
rent list of all fringe benefits provided to employees; (e) in-
formation concerning any pension plan among Respondent’s
unit employees; (f) a copy of the current employee hand-
book; (g) a copy of the current company policy manual; (h)
a list of all temporary and/or probationary workers currently
employed; and (i) a detailed list of all work currently sub-
contracted by Kelly Services or any other temporary services,
etc.
At the hearing, Respondent offered, and, on General Coun-
sel’s objection, I refused to receive, evidence pertaining to
(1) a summary of layoffs at the Respondent’s Belleville,
Michigan facility starting on or about May 29, 1992, and
ending on or about June 26, 1992, relating to 90 laid-off em-
ployees; (2) an agreement of sale of a Tennessee property to
Respondent, dated November 29, 1991, the purchase of
which was effectuated in January 1992; (3) a list of employ-
ees who were given the option to continue to work at the
Michigan facility; and (4) a July 1, 1992 letter from Re-
spondent to the National Labor Relations Board relating to
the conversion of the Michigan facility from a central, na-
tional warehouse to a regional warehouse.
Respondent conceded at the hearing that it had supplied all
of the above-rejected, proffered information to the Board
prior to the issuance, on September 25, 1992, of the Board’s
supplemental decision wherein the Board overruled Respond-
ent’s challenges and directed the opening of the 90 chal-
lenged ballots.
Further, at the hearing, Respondent admitted that it failed
and refused to furnish the information in the Union’s October
28, 1992 request notwithstanding that the requested informa-
tion related to unit employees. Respondent moreover con-
ceded that if its contention that the unit is inappropriate is
rejected by the Board, then Respondent’s failure and refusal
to provide the information constituted, as alleged, a violation
of Section 8(a)(5) and (1) of the Act (subject to any review
in a court of appeals).
B. Contentions of the Parties
The Respondent contends that the Belleville, Michigan
unit is not an appropriate unit because, as it had previously
informed the Board during the representation proceeding, Re-
spondent intended to move the location of its facility to Ten-
nessee and lay off 90 employees, all of which occurred after
the May 28, 1992 election but before the October 14, 1992
certification. It also denies that there was a legally effective
request for bargaining to trigger its statutory obligation and
asserts that because there was, in either event, no bargaining
obligation, there was no duty to supply the admittedly rel-
evant information.
The General Counsel submits that the Board’s unit deter-
mination in the representation case was made with full
knowledge of all of Respondent’s factual contentions and
precludes the Respondent from relitigating this ‘‘unit issue’’
in the unfair labor practice proceeding. He also avers that ex-
istence of a lawful bargaining demand.
C. Discussions and Conclusions
The principal function of this proceeding, as agreed to by
all parties, was Respondent’s attempt to test the certification
in the above representation matter. It was not made clear to
me, at the hearing, why the Board’s summary judgment pro-
cedure was not utilized and one may speculate that perhaps
it was the inclusion of Respondent’s refusal to furnish the re-
quested information or the sufficiency of the request to bar-
gain that caused the case to be noticed for hearing.
In any event, the pleadings place in issue the refusal to
give information, the existence of a legally sufficient request
for bargaining, and, most particularly, the appropriateness of
the certified unit.
712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. With regard to the existence of the Union’s legally suf-
ficient demand for bargaining, denied by Respondent, the
only evidence thereof exists in the Union’s October 28, 1992
letter to Respondent. Not only does that letter describe the
Union as the recipient of ‘‘the exclusive’’ bargaining rep-
resentative rights for unit employees, but the Union then no-
tified Respondent in the letter that it was ‘‘formally request-
ing the following information in order to enable the parties
to enter into a constructive and productive set of negotiations
to reach an acceptable agreement.’’ I regard the letter, in
sum, as demonstrating that the Union, as the statutory collec-
tive-bargaining representative, desired the information so that
it could intelligently negotiate an agreement. Although the
Union’s request for immediate bargaining might arguably
have been phrased with greater clarity, I conclude that the
Union’s letter puts Respondent on notice that the Union, as
the certified representative, wanted the information to pursue
bargaining for a collective-bargaining agreement. It has long
been held that a valid request to bargain need not be made
in any particular form or in haec verba so long as the request
clearly indicates the desire to negotiate and bargain on behalf
of the employees in the appropriate unit. Hydrolines, Inc.,
305 NLRB 416 (1991). This is precisely what the Union’s
letter did. Alternatively, under established Board policy, the
filing of the 8(a)(5) refusal-to-bargain charge here was itself
tantamount to a valid request for recognition and bargaining.
Sterling Processing Corp., 291 NLRB 208, 217 (1988);
Sewanee Coal Operators Assn., 162 NLRB 172 (1967), Rob-
erts Electric Co., 227 NLRB 1312, 1319 (1977).
B. With regard to Respondent’s failure and refusal to pro-
vide the information on unit employees (wages, hours, pen-
sions, etc.) requested by the Union on October 28, 1992, Re-
spondent conceded that the information requested was rel-
evant and, in any event, that its refusal violated Section
8(a)(5) and (1) of the Act.
C. Thus, we reach the question whether Respondent may
attack the certification on the basis of the evidence proffered
in this proceeding. Respondent conceded that all the evidence
to attack the certification, offered in this hearing, had been
presented to the Board prior to the Board’s September 25,
1992 Order whereby (in its Supplemental Decision and Di-
rection of Election) it overruled Respondent’s 90 challenges
and directed the opening of the ballots which lead to the Oc-
tober 14, 1992 union certification. Respondent, having con-
ceded that the evidence on which it seeks, in this hearing,
to attack the certification, was presented or could have been
presented to the Board in the prior representation case, I nec-
essarily am obliged to follow the long-established Board
rule: that because all the unit issues raised by Respondent
were or could have been litigated in the prior representation
proceeding, and because Respondent does not allege newly
discovered and previously unavailable evidence or special
circumstances arising after the certification, it is evident that
Respondent is attempting to relitigate issues that were or
could have been litigated in the prior presentation case. It is
well settled that, in the absence of newly discovered and pre-
viously unavailable evidence or special circumstances the
Respondent, in an unfair labor practice proceeding, alleging
a violation of Section 8(a)(5) is not entitled to relitigate
issues that were or could have been litigated in a prior rep-
resentation proceeding. Pittsburgh Plate Glass Co. v. NLRB,
313 U.S. 146, 162 (1941); Duke University, 311 NLRB 182
(1993).
In view of Respondent’s concession and my determination
that Respondent had already presented the proffered informa-
tion to the Board in the prior representation case on which
it would attack the unit, and because the Board has ruled
against Respondent and certified the unit; and because Re-
spondent has failed to allege, or sought to prove the exist-
ence at the hearing of, any newly discovered and previous
unavailable evidence or the presence of special circumstances
that would require the Board to reexamine the decision made
in the representation proceeding, I conclude that Respondent
is bound by the Board’s unit determination. I further con-
clude that its failure and refusal to bargain with the Union,
upon the Union’s timely request, constitutes as alleged, out
a violation of Section 8(a)(5) and (1) of the Act. It also fol-
lows, consistent with Respondent’s refusal to recognize and
bargain with the Union, that, as Respondent conceded, its re-
fusal to furnish to the Union the information requested by the
Union on October 28, 1992, regarding the terms and condi-
tions of employment of unit employees also constitutes a fur-
ther violation of Section 8(a)(5) and (1) of the Act. Bry-Fern
Care Center, 309 NLRB No. 53 (Oct. 30, 1992). (Not re-
ported in Board volumes).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following unit constitutes a unit appropriate for col-
lective bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time production employ-
ees including checkers, packers, pickers, receivers,
shelvers, shippers, stock controllers, processing employ-
ees, selectors, and warehouse employees employed by
the Respondent at its facility located at 10885 Textile
Road, Belleville, Michigan; but excluding all office
clerical employees, confidential employees, professional
employees, customer service employees, computer entry
employees, guards and supervisors as defined in the
Act.
4. At all times since October 14, 1992, the Union has been
the exclusive collective-bargaining representative of all em-
ployees in the above appropriate unit.
5. By refusing, since October 28, 1992, to recognize and
engage in collective bargaining with the Union as the exclu-
sive representative of the employees in the above-described
appropriate unit, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. By refusing on and after October 28, 1992, to furnish
the Union requested relevant information concerning unit
employees, 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.
7. Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
713SPRING ARBOR DISTRIBUTION CO.
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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
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.’’
THE REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, I shall recommend to the Board
that the Respondent be ordered to cease and desist, to bar-
gain on request with the Union, to furnish all relevant re-
quested information concerning the wages, hours, and terms
and conditions of employment of unit employees and, if an
understanding is reached, to 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, I shall recommend that the Board construe the initial pe-
riod of the certification as beginning the date the Respondent
commences to meet and 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); Outboard Ma-
rine Corp., 307 NLRB 1333 (1992).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Spring Arbor Distribution Company,
Bellevue, Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with International Union, United
Automobile, Aerospace and Agricultural Implement Workers
of America (UAW) AFL–CIO as the exclusive bargaining
representative of the employees in the bargaining unit and re-
fusing to furnish the Union information that is relevant and
necessary to its role as exclusive bargaining representative of
the following unit employees:
All full-time and regular part-time production employ-
ees including checkers, packers, pickers, receivers,
shelvers, shippers, stock controllers, processing employ-
ees, selectors, and warehouse employees employed by
the Respondent at its facility located at 10885 Textile
road, Belleville, Michigan; but excluding all office cler-
ical employees, confidential employees, professional
employees, customer service employees, computer entry
employees, guards and supervisors as defined in the
Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and bargain in good faith with the Union as
the exclusive representative of its employees in the above-de-
scribed unit with respect to wages, hours, and other terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement.
(b) Forthwith furnish to the Union information requested
by it on October 28, 1992, and all further information that
is relevant and necessary to the Union’s role as the exclusive
representative of the unit employees.
(c) Treat the initial year of certification as beginning on
the date this Order is complied with.
(d) Post at its facilities in Belleville, Michigan, copies of
the attached notice marked ‘‘Appendix.’’3 Copies of the no-
tice on forms provided by the Regional Director for Region
7 after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that notices are not altered, de-
faced, or covered by any other material.
(e) By certified mail, mail notices of the above appendix
to all employees on layoff status from Respondent’s Belle-
ville, Michigan facility on May 28, 1992.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps 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
WE WILL NOT refuse to bargain with International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL–CIO as the exclusive rep-
resentative of the employees in the below-described appro-
priate bargaining unit and WE WILL NOT refuse to furnish the
Union information that is relevant and necessary to its role
as exclusive bargaining representative of the unit employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed 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 condi-
tions of employment for our employees in the following ap-
propriate bargaining unit:
All full-time and regular part-time production employ-
ees including checkers, packers, pickers, receivers,
shelvers, shippers, stock controllers, processing employ-
ees, selectors, and warehouse employees employed by
us at our facility located at 10885 Textile Road, Belle-
ville, Michigan; but excluding all office clerical em-
ployees, confidential employees, professional employ-
ees, customer service employees, computer entry em-
ployees, guards and supervisors as defined in the Act.
714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL forthwith furnish to the Union the information
requested by it on October 28, 1992, and all further informa-
tion that is relevant and necessary to the Union’s role as the
exclusive representative of the unit employees.
SPRING ARBOR DISTRIBUTION COMPANY