Highland Superstores, Inc.

National Labor Relations Board - Board DecisionsOct 24, 1989

297 N.L.R.B. 155 (N.L.R.B. 1989)

" . HIGHLAND SUPERSTORES 155 Highland Superstores, Inc. and Highway Drivers, Dockmen, Spotters, Rampmen, Meat Packing House & Allied Products Drivers & Helpers & Office Workers & Miscellaneous Employees, Local 710, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO. Cases 13-CA-28572 and 13-CA-28673 October 24, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On May 22 and June 26, 1989, the General Counsel of the National Labor Relations Board issued complaints, consolidated on June 26, 1989, 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 bargaining and to furnish information following the Union's certifi- cation in Case 13-RC-17344 (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), Frontier Hotel, 265 NLRB 343 (1982) ) The Respondent filed its answers admitting in part and denying in part the allegations in the complaints On August 14, 1989, the General Counsel filed a Motion for Summary Judgment On August 18, 1989, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted The Respondent filed a response The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel Ruling on Motion for Summary Judgment In its answers the Respondent admits its refusal to bargain and to furnish information, but attacks the validity of the certification on the basis of its objections to the election and the Board's unit de- termination in the representation proceeding All representation issues raised by the Respond- ent were or could have been litigated in the prior representation proceeding The Respondent does not offer to adduce at a hearing any newly discov- ered and previously unavailable evidence,' nor 'We find no merit in the Respondent's claim that the information the Respondent wishes to present now was previously unavailable because it was later discovered in the Respondent s files Evidence that the Re- spondent possessed pnor to the representation hearing is not previously unavailable See Magnesium Casting Co, 175 NLRB 397, 399 (1969), enfd 427 F 2d 114 (1st Or 1970), affd 401 US 137 (1971) does it allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding 2 We therefore find that the Respondent has not raised any repre- sentation issue that is properly litigable in this unfair labor practice proceeding See Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 (1941) Additionally, the General Counsel notes that the Respondent has denied in its answer to the com- plaint in Case 13-CA-28763 that the information requested is relevant and necessary to the Union's role as exclusive bargaining representative of the unit employees It is well established, however, that the' employees' wage and employment infor- mation sought by the Union s is presumptively rele- vant for purposes of collective bargaining and must be furnished on request 4 Other than making this bare denial, the Respondent has not attempted to rebut the relevance of the information requested by the Union We therefore find that no material issues of fact exist regarding the Respondent's re- fusal to furnish the information sought by the Union Accordingly, we grant the Motion for Sum- mary Judgment On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I JURISDICTION The Respondent, a Michigan corporation, en- gages in the sale of household and electronic appli- ances at its facility in Lansing, Illinois, where in the past calendar or fiscal year, a representative period, it derived gross revenues in excess of $500,000 and purchased and received products, goods, and materials valued in excess of $50,000 di- rectly from points outside the State of Illinois 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 organi- zation within the meaning of Section 2(5) of the Act 2 The Respondent alleges that the notification only 48 hours prior to the election of the employee status of group leaders constitutes special circumstances that requires the Board to reexamine the representation de- cision We disagree because representation issues are often decided short ly before an election under the Board's request for review procedure 3 The Union sought information on wages personnel fringe benefits, the employee handbook, and any other policies of the Employer that affect terms and conditions of employment 4 See, e g , Trustees of Masonic Hall 261 NLRB 436 (1982), Mobay Chemical Corp, 233 NLRB 109 (1977) 297 NLRB No 17 156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II ALLEGED UNFAIR LABOR PRACTICES A The Certification Following the election held June 24, 1988, the Union was certified on August 5, 1988, as the col- lective-bargaining representative of the employees in the following appropriate unit All full-time and regular part-time warehouse- men and truckdnvers, lead persons, Janitors, and maintenance employees employed at the Employer's facility currently located at 16801 Exchange Avenue, Lansing, Illinois but ex- cluding office clerical employees, service tech- nician employees, guards and supervisors as defined in the Act The Union continues to be the exclusive repre- sentative under Section 9(a) of the Act B Refusals to Bargain Since October 4, 1988, and again on March 9, 1989, 5 the Union has requested the Respondent to bargain, and, on May 5, 1989, to furnish informa- tion Since October 14, 1988, and again on March 20, 1989, the Respondent has refused to bargain Since May 23, 1989, the Respondent has refused to furnish information We find that these refusals constitute unlawful refusals to bargain in violation of Section 8(a)(5) and (1) of the Act CONCLUSIONS OF LAW By refusing on and after October 4, 1988, and March 9, 1989, to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, and since May 23, 1989, to furnish the Union requested informa- tion, the 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 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 bargain on request with the Union, and, if an understanding is reached, to embody the understanding 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 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 5 This latter request followed the Board's February 21, 1989 denial of the Respondent s request for review of the Regional Director s decision certifying the Union in the representation case 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, Highland Superstores, Inc , Lan- sing, Illinois, its officers, agents, successors, and as- signs, shall 1 Cease and desist from (a) Refusing to bargain with Highway Drivers, Dockmen, Spotters, Rampmen, Meat Packing House & Allied Products Drivers & Helpers & Office Workers & Miscellaneous Employees, Local 710, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amenca, AFL-CIO as the exclusive bargaining 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 (b) 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- men and truckdnvers, lead persons, Janitors, and maintenance employees employed at the Employer's facility currently located at 16801 Exchange Avenue, Lansing, Illinois, but ex- cluding office clerical employees, service tech- nician employees, 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 ex- clusive representative of the unit employees (c) Post at its facility in Lansing, Illinois, copies of the attached notice marked "Appendix "6 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 Nation- al 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 HIGHLAND SUPERSTORES 157 Copies of the notice, on forms provided by the Re- gional Director for Region 13 after being signed by the Respondent's authonzed representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted Reason- able 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 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 Highway Drivers, Dockmen, Spotters, Rampmen, Meat Packing House & Allied Products Drivers & Help- ers & Office Workers & Miscellaneous Employees, Local 710, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO as the exclusive representative 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 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- men and truckdnvers, lead persons, Janitors, and maintenance employees employed at the Employer's facility currently located at 16801 Exchange Avenue, Lansing, Illinois, but ex- cluding office clerical employees, service tech- nician employees, guards and supervisors as defined in the Act WE WILL, on request, furnish the Union informa- tion that is relevant and necessary for its role as the exclusive bargaining representative of the unit em- ployees HIGHLAND SUPERSTORES, INC