Manhattan Center Studios

National Labor Relations Board - Board DecisionsSep 24, 2004

342 N.L.R.B. 1264 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 342 NLRB No. 131 1264 Manhattan Center Studios, Inc. and Theatrical Stage Employees Local No. One, I.A.T.S.E., AFL– CIO, CLC. Case 2–CA–35394 September 24, 2004 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS WALSH AND MEISBURG This is a refusal-to-bargain case in which the Respon- dent is contesting the Union’s certification as bargaining representative in the underlying representation proceed- ing. Pursuant to a charge filed on March 23, 2003, the General Counsel issued the complaint on May 30, 2003, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bar- gain and to provide information following the Union’s certification in Case 2–RC–22677. (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 complaint, and asserting certain affirmative defenses. On September 9, 2003, the General Counsel filed a Motion for Summary Judgment and Memorandum in Support. On September 10, 2003, the Board issued an order transferring the proceeding to the Board and a No- tice to Show Cause why the motion should not be granted. The Respondent filed a response and a first amended answer to the complaint. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain and to furnish information, but contests the validity of the certi- fication based on its assertions that it has newly discov- ered evidence that an alleged supervisor engaged in im- proper prounion conduct during the union organizing campaign and that the Union may have made improper promises of job opportunities to unit employees. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. In its response to the Notice to Show Cause, the Respondent asserts that because it “was un- aware of the Union’s misconduct and could not have raised these issues in the earlier representation proceed- ing, and because there exist genuine issues of material fact warranting a hearing, the motion for summary judg- ment must be denied.” In support of this assertion, the Respondent submitted a declaration by its chief execu- tive offficer, Russell Arnold. Therein, Arnold stated that in March 2003, subsequent to the Union’s February 27, 2003 certification, a nonunit employee named Michael Spony informed Arnold that a supervisor named Gustavo Garces had spearheaded the union campaign.1 The Respondent also submitted an affidavit from Spony. Therein, Spony states that in November 2002 he spoke with Garces, and that Garces admitted bringing in the Union, stating: “Yeah, and I don’t care who knows— I’m trying to bring the Union in. Everybody’s getting screwed.” Spony further states that Garces said that “he had brought the union card into the workplace and was taking the card around for employees to sign up for the union.” Spony asserts that he reminded Garces that he could be fired for such actions, and Garces said: “I don’t care . . . Once I get my union card, and with my knowl- edge of sound, I can go anywhere I want.” We find no merit in the Respondent’s contention. First, we note that the Respondent did not file any objec- tions to the conduct of the election. Therefore, the Re- spondent’s affirmative defenses in this unfair labor prac- tice proceeding are essentially an attempt to raise objec- tions to the conduct of the election. However, because the period for filing objections has passed,2 the represen- tation proceeding can only be reopened to litigate these issues if the Respondent can establish that it has newly discovered evidence. The Board has held that “[n]ewly discovered evidence is evidence of facts in existence at the time of [the pro- ceeding in question], which could not be discovered by reasonable diligence. APL Logistics, Inc., 341 NLRB 955 (2004), citing Seder Foods, Corp., 286 NLRB 215, 216 (1987); NLRB v. Jacob E. Decker, 569 F. 2d 357, 363–364 (5th Cir. 1978) (“facts implying reasonable diligence must be provided” by the party alleging that the evidence is newly discovered). The Board additionally held that “in order to warrant a further hearing, the newly discovered evidence must be such that if adduced and 1 Arnold’s declaration further states that Garces had been employed by the Respondent as a technical coordinator. In that position he alleg- edly was the primary point of contact and immediate supervisor of all of the unit employees. In addition, in the declaration Arnold avers that “upon information and belief, Garces was granted membership in the Union and is currently working Union jobs.” (Garces was discharged by the Respondent in February 2003, after the February 19, 2003 elec- tion). Arnold’s declaration also alleges that “upon information and belief, prior to the election, the Union may have improperly promised Garces as well as unit employees job opportunities and Union cards. Since the election, unit employees have been unavailable to work on MCS jobs because upon information and belief, they have been called to work on other Union jobs.” 2 Sec. 102.69(a) of the Board’s Rules and Regulations provides in relevant part: “Within 7 days after the tally of ballots has been pre- pared, any party may file with the Regional Director . . . objections to the conduct of the election or to conduct affecting the results of the election.” MANHATTAN CENTER STUDIOS, INC. 1265 credited, it would require a different result.” APL Logis- tics, supra. Here, the Respondent has established that the evidence it seeks to present was in existence during the time of the representation proceeding. However, the Respondent has failed to present any information indicating that prior to the expiration of time in which to file objections to the election, it engaged in an attempt to uncover any poten- tial improprieties in that proceeding. Thus, the Respon- dent has failed to establish that the evidence at issue could not have been discovered earlier through the exer- cise of reasonable diligence.3 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 also find that there are no factual issues warranting a hearing with respect to the Union’s request for infor- mation. The complaint alleges, and the Respondent’s amended answer admits, that the Union requested the following information by letter dated March 7, 2003, and further admits that it has refused to provide the requested information: A list of the names of all stagehands employed by Manhattan Studios from January 1, 2002 to the present, including each person’s date of hire, job classifica- tion(s), rate(s) of pay, hours worked on a weekly basis, and copies of any individual contracts or letter agree- ments of employment. Copies of all summary plan descriptions (SPDs) for any employee benefit plans that cover or have covered since January 1, 2002, any stagehands employed by Manhattan Center Studios. Although the Respondent’s answer denies that the in- formation is relevant and necessary to the Union’s duties as the exclusive collective-bargaining representative of the unit employees, it is well established that all of the foregoing types of information are presumptively rele- vant for purposes of collective bargaining and must be furnished on request. See, e.g., Cheboygan Health Care Center, 338 NLRB No. 115 (2003); Baker Concrete Construction, 338 NLRB No. 48 (2003), and cases cited therein. The Respondent has not asserted any basis for rebutting the presumptive relevance of the information, apart from its contention, rejected above, that the Un- ion’s certification is invalid. 3 Accordingly, we do not need to reach the issue of whether the Re- spondent has established that the evidence, if adduced and credited, may have required a different result. Accordingly, we grant the Motion for Summary Judg- ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times the Respondent, a corporation with a facility located at 311 West 34th Street, New York, New York, is engaged in the business of providing venues to various clients for events at its facility. Annually, the Respondent, in the course and conduct of its business operations described above, derives gross revenues in excess of $500,000 and purchases and re- ceives supplies valued in excess of $50,000 directly from points located outside the State of New York. 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 organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held February 19, 2003, the Un- ion was certified on February 27, 2003, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: INCLUDED: All full-time and regular part-time stage- hands, production electricians, production carpenters, audio technicians, audio engineers, riggers, lighting technicians, sound technicians, video projection techni- cians and prop persons employed by the Employer at 311 West 34th Street, New York, New York 10001. EXCLUDED: All other employees, including inde- pendent contractors, operations employees, office cleri- cal employees, managers, and guards, professional em- ployees and supervisors as defined by the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain By letter dated March 7, 2003, the Union requested that the Respondent meet and bargain and furnish infor- mation, and, by letter dated March 20, 2003, the Respon- dent has failed and refused to do so. We find that the Respondent’s conduct 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 March 20, 2003, to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit and to DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1266 furnish the Union requested information, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Sec- tion 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 Respon- dent 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 the law, we shall construe the initial period of the cer- tification as beginning the date 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, Manhattan Center Studios, Inc., New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Theatrical Stage Employ- ees Local No. One, I.A.T.S.E., AFL–CIO, CLC, 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 em- ployees. (b) In any like or related manner interfering with, re- straining, 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 exclusive representative of the employees in the following appro- priate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: INCLUDED: All full-time and regular part-time stage- hands, production electricians, production carpenters, audio technicians, audio engineers, riggers, lighting technicians, sound technicians, video projection techni- cians and prop persons employed by the Employer at 311 West 34th Street, New York, New York 10001. EXCLUDED: All other employees, including inde- pendent contractors, operations employees, office cleri- cal employees, managers, and guards, professional em- ployees and supervisors as defined by the Act. (b) Furnish the Union the information it requested on March 7, 2003. (c) Within 14 days after service by the Region, post at its facility in New York, New York, copies of the at- tached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent 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 al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since March 20, 2003. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. 4 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board. MANHATTAN CENTER STUDIOS, INC. 1267 WE WILL NOT refuse to bargain with Theatrical Stage Employees Local No. One, I.A.T.S.E., AFL-CIO, CLC, as the exclusive representative of the employees in the bargaining unit. 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 bar- gaining unit: INCLUDED: All full-time and regular part-time stage- hands, production electricians, production carpenters, audio technicians, audio engineers, riggers, lighting technicians, sound technicians, video projection techni- cians and prop persons employed by us at 311 West 34th Street, New York, New York 10001. EXCLUDED: All other employees, including inde- pendent contractors, operations employees, office cleri- cal employees, managers, and guards, professional em- ployees and supervisors as defined by the Act. WE WILL furnish the Union the information it re- quested on March 7, 2003. MANHATTAN CENTER STUDIOS, INC.