Deadline Express

National Labor Relations Board - Board Decisions

May 18, 1994

313 N.L.R.B. 1244 (N.L.R.B. 1994)

1244
313 NLRB No. 222
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Union requested that the Respondent furnish it with a list
of all employees including home addresses, employment starting
dates, job classifications, hourly wage rates and whether the em-
ployee received a commission and, if so, how much; a complete de-
scription of the medical insurance and a listing of those employees
who participate in the medical insurance, whether their dependents
are covered, and whether a premium is paid by the employee and,
if so, how much; all written job descriptions; and all work rules and
employment policies.
2 See, e.g., Masonic Hall, 261 NLRB 436 (1982); and Mobay
Chemical Corp., 233 NLRB 109 (1977).
3 Cf. National Posters, 282 NLRB 997 (1987) (hearing ordered
where respondent employer contended that it had previously unavail-
able evidence showing that certified local union no longer existed
due to a merger between local’s parent organization and another
JRED Enterprises, Inc. d/b/a Deadline Express and
Deadline Express Drivers Association. Case 13–
CA–32234
May 18, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On February 4, 1994, the Acting General Counsel of
the National Labor Relations Board issued a complaint
and notice of hearing alleging that the Respondent has
violated Section 8(a)(5) and (1) of the National Labor
Relations Act by refusing the Union’s request to bar-
gain following the Union’s certification in Case 13–
RC–18615. (Official notice is taken of the ‘‘record’’ in
the representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Respond-
ent filed an answer admitting in part and denying in
part the allegations in the complaint.
On March 8, 1994, the General Counsel filed a Mo-
tion for Summary Judgment, with exhibits attached.
On March 11, 1994, 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.
On March 11, 1994, the Respondent filed a response.
Thereafter, the General Counsel filed a response and
the Respondent filed a reply thereto.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer, the Respondent admits its refusal to
bargain and to furnish information to the Union, but
attacks the validity of the certification on the basis of
its contention concerning the status of the Union as a
labor organization and the disagreement with the
Board’s disposition of its objections to the election. In
addition, in its response to the Notice to Show Cause,
the Respondent submits that it has newly discovered
and previously unavailable evidence that there has ap-
parently been a material change in representative from
the Deadline Express Drivers Association (DEDA), the
certified union, to the Service Employees International
Union (SEIU), and that it believes such change was
unaccompanied by any election. The Respondent con-
tends that a hearing is required to resolve this issue be-
fore a bargaining order may issue.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent 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 representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
We further find that there are no factual issues re-
garding the Union’s request for information inasmuch
as the Respondent admits that it refused to furnish the
information. Although the Respondent denies that the
information is necessary and relevant to the Union’s
performance of its duties, the description of the infor-
mation sought on its face relates directly to the wages,
hours, and terms and conditions of employment of the
unit employees and we so find.1 It is well established
that wage and employment information of this type is
presumptively relevant for purposes of collective bar-
gaining and must be furnished on request.2 In any
event, the Respondent did not contest relevance in its
response to the show cause order. We therefore find
that the Respondent has not, by its denial, raised any
issue requiring a hearing with respect to the Union’s
request for information.
Finally, we reject the Employer’s contention that a
hearing is required in this case as to whether there has
been a change in the bargaining representative. The
only evidence cited by the Employer supporting its
claim that there has been an affiliation or merger be-
tween the DEDA and the SEIU is a notice headlined
‘‘DEDA’’ which announced a general membership
meeting to be held on March 2, 1994, and invited em-
ployees to ‘‘Come and meet your representatives from
The Service Employees International Union. They are
helping to negotiate your contract.’’ On its face, this
evidence indicates nothing more than that the DEDA
has retained the SEIU to assist in negotiating the con-
tract with the Respondent, not that there has actually
been an affiliation or merger with the SEIU. Indeed,
Respondent asserts only that ‘‘an affiliation or merger
or other transfer of authority and responsibility may
have occurred’’ (emphasis added). Accordingly, we
find that this evidence, even assuming it is newly dis-
covered and previously unavailable, is insufficient to
raise an issue for hearing.3
1245DEADLINE EXPRESS
union; that local union’s governing body had been taken over by
new officers and a new organizational structure of a different union
with different dues and membership requirements; and that local
transacted business under a different name and structure).
4 Although the Respondent denies the complaint’s allegation that
the Union is a labor organization, we find that this denial does not
raise an issue warranting a hearing. As noted by the General Coun-
sel, the status of the Union as a labor organization was decided in
Case 13–RC–18615 and thus cannot be relitigated in this proceeding.
The Respondent’s other affirmative defenses, viz., the Union re-
ceived unlawful assistance in its formation and creation and the
Union is a dominated labor organization, each allege violations of
Sec. 8(a)(2) of the Act. The issue presented by these defenses could
have been raised in the representation case, have not been the sub-
ject of unfair labor practice charges, and in any event are not appro-
priate for resolution in this proceeding. In addition, the Respondent’s
affirmative defense that the Union has a conflict of interest that pre-
cludes it from meeting its duty of fair representation is also an issue
which could have been and was not presented in the underlying rep-
resentation proceeding and thus cannot be raised in this proceeding.
Accordingly, we grant the General Counsel’s Motion
for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, a corporation,
with an office and place of business in Chicago, Illi-
nois, has been engaged in the business of messenger
service and small package delivery.
During the past calendar year the Respondent, in
conducting its business operations, derived gross reve-
nues in excess of $1 million and, during the same pe-
riod of time, provided services valued in excess of
$50,000 to enterprises located within the State of Illi-
nois which are directly engaged in interstate com-
merce.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.4
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held July 9, 1993, the Union
was certified on November 30, 1993, as the collective-
bargaining representative of the employees in the fol-
lowing appropriate unit:
All full-time and regular part-time automobile, bi-
cycle, motorcycle and walker messengers, order
takers, dispatchers and dispatcher aides employed
by the Employer at its facility presently located at
449 North Union Street, Chicago, Illinois; but ex-
cluding sales employees, office clerical employ-
ees, guards and supervisors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since December 1, 1993, the Union has requested
the Respondent to bargain and to furnish information,
and, since January 7, 1994, the Respondent has re-
fused. We find that this refusal constitutes an unlawful
refusal to bargain in violation of Section 8(a)(5) and
(1) of the Act.
CONCLUSION OF LAW
By refusing on and after January 7, 1994, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit and
to furnish the Union requested information, the Re-
spondent has engaged in unfair labor practices affect-
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 Sec-
tion 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 un-
derstanding in a signed agreement. We also shall order
the Respondent to furnish the Union the information
requested.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent 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, JRED Enterprises, Inc. d/b/a Deadline Ex-
press, Chicago, Illinois, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Deadline Express Driv-
ers Association as the exclusive bargaining representa-
tive of the employees in the bargaining unit, and refus-
ing to furnish the Union information that is relevant
and necessary to its role as the exclusive bargaining
representative of the unit employees.
(b) In any like or related manner interfering with,
restraining, 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 representative of the employees in the following
appropriate unit on terms and conditions of employ-
1246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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.’’
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time automobile, bi-
cycle, motorcycle and walker messengers, order
takers, dispatchers and dispatcher aides employed
by the Employer at its facility presently located at
449 North Union Street, Chicago, Illinois; but ex-
cluding sales employees, office clerical employ-
ees, guards and supervisors as defined in the Act.
(b) On request, furnish the Union information that is
relevant and necessary to its role as the exclusive rep-
resentative of the unit employees.
(c) Post at its facility in Chicago, Illinois, copies of
the attached notice marked ‘‘Appendix.’’5 Copies of
the notice, on forms provided by the Regional Director
for Region 13 after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately on 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 Re-
spondent to ensure that the notices are not altered, de-
faced, 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 Re-
spondent 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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Deadline Ex-
press Drivers Association as the exclusive representa-
tive of the employees in the bargaining unit, and WE
WILL NOT refuse to furnish the Union information that
is relevant and necessary to its role as the 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 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 automobile, bi-
cycle, motorcycle and walker messengers, order
takers, dispatchers and dispatcher aides employed
by us at our facility presently located at 449
North Union Street, Chicago, Illinois; but exclud-
ing sales employees, office clerical employees,
guards and supervisors as defined in the Act.
WE WILL, on request, furnish the Union information
that is relevant and necessary to its role as the exclu-
sive bargaining representative of the unit employees.
JRED ENTERPRISES, INC. D/B/A DEAD-
LINE EXPRESS