DST Industries

National Labor Relations Board - Board Decisions

Feb 9, 1994

313 N.L.R.B. 639 (N.L.R.B. 1994)

639
313 NLRB No. 86
DST INDUSTRIES
1 As set forth in the General Counsel’s Motion for Summary Judg-
ment, the name of the Union has been changed to include UAW Re-
gion 1A, the other Charging Party involved in this proceeding.
2 In its answer, the Respondent denies the complaint allegation that
the Union verbally requested bargaining. However, attached to the
Continued
DST Industries, Inc. and UAW Region 1A and
Local 174, International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL–CIO.1 Case
7–CA–34717
February 9, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On July 9, 1993, the General Counsel of the Na-
tional Labor Relations Board issued a complaint and
notice of hearing alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the National Labor Re-
lations Act by refusing Local 174, International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), AFL–CIO’s (the
Union) request to bargain following the Union’s cer-
tification in Case 7–RC–19582. (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 Respondent filed an answer admitting in
part and denying in part the allegations in the com-
plaint.
On November 24, 1993, the General Counsel filed
a Motion for Summary Judgment. On November 24,
1993, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. The Respondent
filed a response.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to
bargain and to furnish information that is relevant and
necessary to the Union’s role as bargaining representa-
tive, but attacks the validity of the certification on the
basis of the Board’s disposition of determinative chal-
lenged ballots in the representation proceeding.
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).
There are no factual issues regarding the Union’s re-
quest for information because the Respondent admits
that it refused to furnish the information. Accordingly,
we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and
place of business in Romulus, Michigan, and a place
of business in Clinton, Michigan, has been engaged in
the design, display, and marketing of prototype and
specialty automobiles for the automotive industry, in-
cluding Ford Motor Company. The Respondent’s fa-
cilities located in Romulus and Clinton, Michigan, are
the only facilities involved in this proceeding.
During the calendar year ending December 31, 1992,
the Respondent, in conducting its business operations,
provided services within the State of Michigan valued
in excess of $50,000 to Ford Motor Company. During
the same period of time, Ford Motor Company had
gross revenues in excess of $500,000, and purchased
goods and materials valued in excess of $50,000,
which were shipped to its Michigan facilities directly
from points located outside the State of Michigan.
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 organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held June 14, 1991, the
Union was certified on March 31, 1993, as the collec-
tive-bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part-time employees, in-
cluding truck drivers, non-supervisory leaders and
field operations personnel, employed by the Em-
ployer at or out of its facilities located at 34364
Goddard Road, Romulus, Michigan and 11900
Tecumseh Road, Clinton, Michigan; but excluding
office clerical employees, design department em-
ployees, confidential employees, managerial em-
ployees, 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 June 9, 1993,2 the Union has requested the
Respondent to bargain and to furnish information and,
640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
General Counsel’s motion is a letter from the Respondent to the
Union dated June 18, 1993, specifically refusing to bargain in order
to obtain a court ruling on the Board’s certification of the Union.
Further, it is clear from the Respondent’s answer that the Respond-
ent contends that it is under no legal obligation to bargain with the
Union solely on the grounds that the certification is invalid. Accord-
ingly, we find that the Respondent’s denial raises no material issue
of fact warranting a hearing.
3 The Respondent contends that certain of the information re-
quested by the Union is not presumptively relevant. Specifically, the
Union’s request set out at pars. 14 and 15 of the Union’s letter of
April 27, 1993. We agree. Information related to its competitors and
its current operating plans is not presumptively relevant and, accord-
ingly, the Union has the burden of making such a showing. See, e.g.,
Blue Diamond Co., 295 NLRB 1007 (1989). We therefore deny the
General Counsel’s Motion for Summary Judgment as to the matters
set out in pars. 14 and 15 of the Union’s letter and remand those
issues to the Regional Director for further appropriate proceedings.
4 In its response to the Notice to Show Cause, the Respondent al-
leges that a change of carrier was required because its then-current
carrier was discontinuing business in the State of Michigan. Assum-
ing the accuracy of the Respondent’s assertion, this does not absolve
the Respondent of its bargaining obligation in which, as alleged, the
change in carrier also resulted in a change in benefits. See Keystone
v. Wire, 237 NLRB 763, 767 fn. 8 (1978).
since June 18, 1993, the Respondent has refused. We
find that these refusals constitute unlawful refusal to
bargain in violation of Section 8(a)(5) and (1) of the
Act.3 Additionally, the complaint alleges and the Re-
spondent admits that on or about July 1, 1993, Re-
spondent unilaterally changed its health care carrier
and coverage for certain unit employees and their eligi-
ble dependents. We find that this conduct constitutes
a failure to bargain about a mandatory subject of bar-
gaining.4
CONCLUSION OF LAW
By refusing on and after June 18, 1993, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit and
to furnish the Union requested information and by uni-
laterally changing health care benefits, the Respondent
has engaged in unfair labor practices affecting com-
merce 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.
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) by unilaterally changing insurance
carrier and benefits, we shall order the Respondent to
restore the employees’ health insurance coverage and
make the employees whole by reimbursing them for
any expenses ensuing from the Respondent’s unlawful
conduct, as set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th
Cir. 1981), with interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
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, DST Industries, Inc., Romulus and Clin-
ton, Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with UAW Region 1A and
Local 174, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), AFL–CIO as the exclusive bargain-
ing representative of the employees in the bargaining
unit, and refusing to furnish the Union information that
is relevant and necessary to its role as the exclusive
bargaining representative of the unit employees and
unilaterally changing insurance carriers and coverage
for unit employees and dependents.
(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-
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time employees, in-
cluding truck drivers, non-supervisory leaders and
field operations personnel, employed by the Em-
ployer at or out of its facilities located at 34364
Goddard Road, Romulus, Michigan and 11900
Tecumseh Road, Clinton, Michigan; but excluding
office clerical employees, design department em-
ployees, confidential employees, managerial em-
ployees, 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) Restore health insurance coverage and reimburse
the unit employees for any losses which occurred as a
641DST INDUSTRIES
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.’’
result of the unilateral changes as provided by the rem-
edy section of this decision.
(d) Post at its facilities in Romulus and Clinton,
Michigan, copies of the attached notice marked ‘‘Ap-
pendix.’’5 Copies of the notice, on forms provided by
the Regional Director for Region 7 after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent 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 Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) 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 UAW Region
1A and Local 174, International Union, United Auto-
mobile, Aerospace and Agricultural Implement Work-
ers of America (UAW), AFL–CIO as the exclusive
representative of the employees in the bargaining unit,
and WE WILL NOT refuse to furnish the Union informa-
tion that is relevant and necessary to its role as the ex-
clusive bargaining representative of the unit employ-
ees.
WE WILL NOT make unilateral changes in employee
health insurance carriers or coverage.
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 employees, in-
cluding truck drivers, non-supervisory leaders and
field operations personnel, employed by us at or
out of our facilities located at 34364 Goddard
Road, Romulus, Michigan and 11900 Tecumseh
Road, Clinton, Michigan; but excluding office
clerical employees, design department employees,
confidential employees, managerial 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.
WE WILL restore health insurance coverage for unit
employees and their dependents and reimburse em-
ployees for any losses which occurred as a result of
our unilateral changes.
DST INDUSTRIES, INC.