Knapp-Sherrill Co.

National Labor Relations Board - Board DecisionsFeb 10, 1984

268 N.L.R.B. 800 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Knapp-Sherrill Company and United Food and Com- mercial Workers International Union, AFL- CIO, Local No. 171. Case 23-CA-8088 10 February 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS Upon a charge filed by the Union 11 August 1980, the General Counsel of the National Labor Relations Board issued an amended complaint 14 February 19831 against the Company, the Re- spondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The amended complaint alleges that the Union is the exclusive collective-bargaining representative of the Company's employees in the unit found ap- propriate. (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), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (Nov. 9, 1982).) The amended complaint further alleges that since 29 July 1980 the Company has refused to bargain with the Union and to furnish the Union with certain information necessary for and relevant to the Union's performance of its duties as the em- ployees' collective-bargaining representative. On 4 March 1983 the Company filed its answer admit- ting in part and denying in part the allegations in the complaint. On 21 March 1983 the General Counsel filed a Motion for Summary Judgment. On 25 March 1983 the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. The Company 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 answer to the amended complaint and re- sponse to the Notice to Show Cause, the Respond- ent admits that it has refused to bargain with the Union and that it has refused to provide the neces- sary and relevant information requested by the Union. The Respondent denies, however, that it has violated Section 8(a)(5) and (1) by its actions. The Respondent asserts its doubt that the Union is the lawful successor to Amalgamated Meat Cut- ters, AFL-CIO, Local No. 173. The Respondent I The original complaint was issued 26 September 1980. 268 NLRB No. 114 also claims that it has a good-faith doubt as to the Union's majority status in the appropriate bargain- ing unit. The General Counsel contends that the successorship question has been answered by the Board in a related representation proceeding, Case 23-AC-42, and that the majority status of the Union also has been considered by the Board in an- other related representation proceeding, Case 23- RM-383. The- General Counsel contends that the Respondent is attempting to relitigate the issues it raised in the two related representation proceed- ings. We agree with the General Counsel. Our review of the entire record herein, including the records in the two related representation pro- ceedings, reveals the following: In 1972, Amalga- mated Meat Cutters Local No. 173, herein referred to as Local 173, was certified in Case 23-RC-3595 as the representative of the Company's production and maintenance employees. Thereafter, the Re- spondent and Local 173 entered into a series of collective-bargaining agreements, the most recent of which was effective from 30 September 1977 through 29 September 1980. In late 1977, negotiations were conducted by Local 173's leadership towards a merger of Local 173 with Amalgamated Meat Cutters Local Union No. 171, herein Local 171. The merger was ap- proved and effective 2 January 1978 Local 171 became the surviving local union. The Respondent agreed to recognize Local 171 as the representative of its employees and as the contracting union in the existing agreement originally signed by Local 173. On 12 August 1980 Local 171 filed a petition in Case 23-AC-42 seeking to amend the 1972 certifi- cation in Case 23-RC-3595. Local 171 requested that the name of the originally designated repre- sentative, Local 173, be deleted and that United Food and Commercial Workers International Union, AFL-CIO, Local Union No. 171, be substi- tuted therefor. At the hearing, the Respondent opposed the amendment to certification for two reasons: (1) the merger of Local 173 and Local 171 resulted in a different entity rather than in the continuation of former Local 173; and (2) the 1979 merger of the Retail Clerks International Association, AFL-CIO, with the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, which re- sulted in the creation of the United Food and Com- mercial Workers International Union, AFL-CIO- CLC, created an entity which is not the legal suc- cessor to either of the merged unions. On 25 Sep- tember 1980 the Regional Director for Region 23 issued a Decision and Order Amending Certifica- tion of Representative. 800 KNAPP-SHERRILL CO. The Respondent filed a request for review of the Regional Director's decision. On 13 August 1982 the Board issued its Decision on Review.2 The Board, after a full discussion of all the issues, essen- tially approved the merger of Local 173 and Local 171 finding, in any event, that under the circum- stances the Respondent was estopped from chal- lenging the procedures involved in the merger. 3 The Board also found that Local 171 was a con- tinuation of Local 173. With regard to the Re- spondent's contention that the Union is not a suc- cessor to Local 171, the Board noted that it had previously affirmed the merger of the two Interna- tional unions 4 and that the change in name of the certified union from Local 173 to the Union did not affect the continuity of representation. Thus, it appears that, with regard to the successorship issue, the Respondent is attempting to raise issues which were raised and determined in Case 23-AC-42. As noted, the Respondent also claims that it has a good-faith doubt that the Union represents a ma- jority of its employees in the appropriate unit. On 31 July 1980 the Respondent filed a petition in Case 23-RM-383. By letter dated 2 December 1982 the Regional Director for Region 23 dismissed the petition finding that it did not raise a question con- cerning representation. The Regional Director noted the Board had resolved the successorship question in its published decision in Knapp-Sherrill, supra, and that the Board had issued a complaint in the instant case alleging the Respondent's unlawful refusal to bargain with the Union. The Regional Director indicated that, in view of the Board's dis- position of the AC petition and the outstanding complaint, the Respondent may not raise a question concerning representation. Thereafter, the Re- spondent filed a request for review of the dismissal of its petition, reiterating that objective consider- ations existed which form the basis for its good- faith doubt of the Union's majority status, and that the Board acted on its RM petition in Case 23- AC-42, some 2 years later. On 27 January 1983 the Board denied the Respondent's request for review noting that there was an outstanding complaint 2 263 NLRB 396 (1982). 3 Then Chairman Van de Water and Member Hunter relied solely on the estoppel theory in deciding the case. Chairman Dotson was not on the Board at the time of its previous decision in 263 NLRB 396 Howev- er, the Chairman agrees with the rationale of Member Hunter and then Chairman Van de Water that the Company was estopped in raising the merger issue. Chairman Dotson disavows any other rationale in that pre- vious decision. Member Dennis agrees that the Respondent's voluntary recognition of Local 171 estops it from challenging the procedures employed in the merger of the two locals, as the Board found in the previous decision, 263 NLRB 396, and relies solely on that ground and on the Board's find- ing that Local 171 is a successor to Local 173 in granting the Motion for Summary Judgment. 4 Warehouse Groceries Management, 254 NLRB 252, 256 (1981); Texas Plastics, 263 NLRB 394 (1982). containing allegations that precluded a question concerning representation from being raised at that time. 5 Thus it appears that, with regard to this issue also, the Respondent is attempting to reliti- gate matters already settled in a related representa- tion proceeding. It is well settled that in the absence of newly dis- covered and previously unavailable evidence or special circumstances, a respondent in a 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 representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Company were or could have been litigated in the prior representation pro- ceeding. The Company does not offer to adduce at a hearing any newly discovered and previously un- available evidence, nor does it allege any special circumstances that would require the Board to re- examine the decision made in the representation proceeding. We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a Texas corporation, is engaged in the manufacture, processing, and sale of citrus juice and vegetables at its facility in Donna, Texas, where it annually sold and shipped products, goods, and materials valued in excess of $50,000 di- rectly to points outside the State of Texas. We find that the Company is an employer engaged in com- merce 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. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification On 20 June 1972 former Local 173 was certified in Case 23-RC-3595 as the collective-bargaining representative in said unit. As previously noted, pursuant to a valid merger, and pursuant to a deci- sion of the Board, that Certification of Representa- tive was amended to substitute the Union for Local 173. The Union is the exclusive representative of s Member Hunter dissented, as he would have reinstated the petition and consolidated it with the instant unfair labor practice case. 801 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees in the following appropriate unit within the meaning of Section 9(a) of the Act. All production and maintenance employees in- cluding truckdrivers and warehousemen em- ployed by the Respondent at its Donna, Texas plant, excluding all fieldmen, office clerical employees, guards, watchmen and supervisors as defined in the Act. B. Refusal to Bargain and the Respondent's Refusal Since 15 July 1980 the Union has requested the Company to bargain, and since 29 July 1980 the Company has refused. We find that this refusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. C. The Request to Furnish Information and the Respondent's Refusal Since on or about 9 July 1980 the Union has re- quested that the Respondent furnish it with the fol- lowing information: 1. The names of all the employees in the bargaining unit, addresses, the date of hire, the rates of pay, dates of birth, marital status, job classification, department, and any other perti- nent information to the employees. 2. A copy, if any, of any profit and/or pen- sion fund plan, the amount of the Employer and employee contributions. 3. A copy, if any, of all rules and regulations governing the conduct of employees. Since on or about 29 July 1980 the Respondent has failed and refused, and continues to fail and refuse, to furnish the Union with the information requested. By letter dated 5 November 1982 the Union re- quested that the Respondent furnish it not only with the information described above, but also with the following additional information: 1. Number of dependents of each employee. 2. Description of any and all fringe benefits currently provided to all employees such as holiday, jury duty payment, funeral pay, paid vacations, etc., including health and welfare, total cost, company share of expense and em- ployee's share of expense. 3. Job descriptions. 4. If merit wages are provided, the names, amount of merit increases, the date such merit increases were provided, the method and/or procedure used to provide such merit in- creases. The Respondent has failed and refused, and con- tinues to fail and refuse, to provide the additional information requested by the Union. The information requested, as described above, is necessary for, and relevant to, the Union's perform- ance of its function as the exclusive collective-bar- gaining representative of the employees in the ap- propriate unit. CONCLUSIONS OF LAW By refusing on and after 29 July 1980 to bargain with the Union as the exclusive collective-bargain- ing representative of employees in the appropriate unit, and by refusing on and after 29 July 1980 to furnish the Union with certain requested informa- tion necessary and relevant for the purposes of col- lective-bargaining, 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 bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. As we have also found that the Respondent violat- ed Section 8(a)(5) and (1) of the Act by failing and refusing to provide the Union with certain informa- tion, we shall order the Respondent to furnish the Union with such information. ORDER The National Labor Relations Board orders that the Respondent, Knapp-Sherrill Company, Donna, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Food and Commercial Workers International Union, AFL- CIO, Local No. 171, as the exclusive bargaining representative of the employees in the bargaining unit. (b) Refusing to bargain with the above-named labor organization by refusing to furnish the re- quested information relevant and necessary for the purpose of collective bargaining. (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- 802 KNAPP-SHERRILL CO. lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All production and maintenance employees in- cluding truckdrivers and warehousemen em- ployed by the Respondent at its Donna, Texas plant excluding all field men, office clerical employees, guards, watchmen and supervisors as defined in the Act. (b) Upon request, furnish the above-named labor organization with the following information: the names of all employees in the bargaining unit, ad- dresses, dates of hire, rates of pay, dates of birth, marital status, number of dependents, job classifica- tion and description department, any other infor- mation pertinent to the employees; a copy, if any, of any profit and/or pension fund plan, the amount of the employer and employee contributions; a copy, if any, of all rules and regulations governing the conduct of employees; a description of any and all fringe benefits currently provided to all employ- ees such as holiday, jury duty payment, funeral pay, paid vacation, etc., including health and wel- fare, total cost, company share of expense and em- ployee's share of expense; and, if merit wages are provided, the names, amount of merit increases, the date such merit increases were provided, and the method and/or procedures used to provide such merit increases. (c) Post at its facility in Donna, Texas, copies of the attached notice marked "Appendix." 6 Copies of the notice, on forms provided by the Regional Director for Region 23, after being signed by the Respondent's authorized 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 EMPL OYEES? 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 United Food and Commercial Workers International Union, AFL-CIO, Local No. 171, as the exclusive representative of the employees in the bargaining unit. WE WILL NOT refuse to provide the Union with the requested relevant and necessary information described below. 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 production and maintenance employees in- cluding truckdrivers and warehousemen em- ployed by the Employer at its Donna, Texas plant excluding all field men, office clerical employees, guards, watchmen and supervisors as defined in the Act. WE WILL, upon request, provide the Union with the following information: the names of all employ- ees in the bargaining unit, addresses, dates of hire, rates of pay, dates of birth, marital status, number of dependents, job classification and description, department, and any other information pertinent to the employees; a copy, if any, of any profit and/or pension fund plan, the amount of the employer and employee contributions; a copy, if any, of all rules and regulations governing the conduct of employ- ees; a description of any and all fringe benefits cur- rently provided to all employees such as holiday, jury duty payment, funeral pay, paid vacation, etc., s 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." 803 DECISIONS OF NATIONAL LABOR RELATIONS BOARD including health and welfare, total cost, company share of expa ses and employee's share of expense; and, if merin wages are provided, the names, amount of merit increases, the date such merit in- creases were provided, and the method and/or pro- cedure used to provide such merit increases. KNAPP-SHERRILL COMPANY 804