Pallet Companies, Inc., a subsidiary of IFCO Systems N.A., Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2014

361 N.L.R.B. 339 (N.L.R.B. 2014)

PALLET COS. 339
Pallet Companies, Inc., a Subsidiary of IFCO Sys-
tems, N.A., Inc. and United Food & Commercial
Workers Union, Local 1360. Cases 04–CA–
128224 and 04–CA–128228
August 27, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to charges filed by United Food
and Commercial Workers Union, Local 1360 (the Union)
on May 6, 2014, the General Counsel issued the consoli-
dated complaint on May 14, 2014, alleging that the Re-
spondent has violated Section 8(a)(5) and (1) of the Act
by refusing the Union’s request to bargain and to furnish
relevant and necessary information following the Un-
ion’s certification in Case 04–RC–093398. (Official
notice is taken of the “record” in the representation pro-
ceeding 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 and an
amended answer, admitting in part and denying in part
the allegations in the consolidated complaint, and assert-
ing affirmative defenses.
On June 2, 2014, the General Counsel filed a Motion
for Summary Judgment and memorandum in support.
On June 5, 2014, 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 and a supplemental response. In addi-
tion, the Respondent filed a Motion for Summary Judg-
ment.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motions for Summary Judgment
The Respondent argues for the first time in its motion
for summary judgment and its amended answer to the
consolidated complaint that the Board lacked a quorum
at the time it approved the appointment of Dennis Walsh
as Regional Director for Region 4 on March 10, 2013.
See NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). The
Respondent argues that therefore Regional Director
Walsh was without authority to issue the consolidated
complaint in this proceeding, and that it is entitled to
summary judgment as a matter of law. We find no merit
in this contention.
Under the Act, the General Counsel is an independent
officer appointed by the President and confirmed by the
Senate. The authority of the General Counsel to investi-
gate unfair labor practice charges, and to issue and pros-
ecute unfair labor practice complaints, is derived directly
from the language of the NLRA, not from any “power
delegated” by the Board.1 Accordingly, the presence or
absence of a valid Board quorum has no bearing on the
General Counsel’s prosecutorial authority in this matter.
Agency staff engaged in the investigation and prosecu-
tion of unfair labor practices are directly accountable to
the General Counsel. 29 U.S.C. § 153(d); See NLRB v.
Food & Commercial Workers Local 23, 484 U.S. 112,
127–128 (1987); NLRB v. FLRA, 613 F.3d 275, 278
(D.C. Cir. 2010). When a Regional Director or other
designated Board agent issues a complaint, he acts for,
and with authority delegated by, the General Counsel.
Postal Service, 347 NLRB 885, 886 (2006); Roadway
Express, Inc., 355 NLRB 197, 206 (2010). In the instant
matter, the Respondent does not dispute that the consoli-
dated complaint was issued in the name of the General
Counsel and with the General Counsel’s authority. Un-
der these circumstances, we find that the consolidated
complaint was validly issued and not subject to attack
based on the argument that the Board lacked a quorum at
the time it approved the appointment of Dennis Walsh as
Regional Director for Region 4.
Moreover, to the extent that the Respondent questions
the technical aspects of Regional Director Walsh’s ap-
pointment at a time when the Board lacked a quorum, it
should be noted that the Board previously issued an order
contingently delegating certain authorities to other
NLRB officials.2 Thus, in the absence of a Board quor-
um, the General Counsel was authorized to appoint
Walsh as Regional Director consistent with the contin-
gent delegation.
Finally, on July 18, 2014, in an abundance of caution
and with a full complement of five Members, the Board
ratified nunc pro tunc and expressly authorized the selec-
tion of Dennis Walsh as Regional Director for Region 4.
In a further abundance of caution, on July 30, 2014, Re-
gional Director Walsh affirmed and ratified any and all
actions taken by him or on his behalf during the period of
1 Section 3(d) of the Act gives the General Counsel “final authority,
on behalf of the Board, in respect of the investigation of charges and
issuance of complaints under Section 10 [of the Act]”, and Section
10(b) provides that any Board agent may be designated to issue com-
plaints. 29 U.S.C. §§ 153(d) & 160(b); See Richardson Chemical Co.,
222 NLRB 5, 6 (1976) (complaint issued by “Acting” Regional Direc-
tor not ultra vires; Assistant to the Regional Director properly designat-
ed to issue complaint pursuant to authority delegated by General Coun-
sel).
2 See Order Contingently Delegating Authority to the Chairman, the
General Counsel, and the Chief Administrative Law Judge, 76 Fed.
Reg. 73719 (Nov. 29, 2011).
361 NLRB No. 33

340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
March 10, 2013, to July 18, 2014. Accordingly, the Re-
spondent’s motion is denied.
With respect to the General Counsel’s motion, the Re-
spondent admits its refusal to bargain, but contests the
validity of the certification on the basis of the issues
raised in the representation proceeding.3 The Respond-
ent asserts that the representation election was tainted by
the Union’s objectionable and coercive conduct and, as a
result, employees were not able to freely express their
views concerning representation.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair 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 consolidated complaint alleges that by letter
dated April 4, 2014, the Union requested the following
information, but excluding social security numbers:

1. Name, address, social security number, sex, date of
birth, marital status and hire date.
2. Current wage rate and wage history during period of
employment with Respondent.
3. Job classification, job description and part-time or
full-time status.
4. All fringe benefits including but not limited to in-
surance, pension benefits and health insurance with
cost and scope of coverage fully broken down and de-
tailed.
5. All personnel policies or employee handbooks.

3 In its amended answer to the consolidated complaint, the Respond-
ent denies the allegations that the Union requested information from the
Respondent and that the Respondent was refusing to furnish the infor-
mation to the Union. However, the Respondent admits that by letter
dated April 25, 2014, attached to the consolidated complaint as app. C,
it refused to bargain with the Union. The April 25, 2014 letter states:
“Accordingly, we are refusing to bargain and will not supply any of the
requested information.” Therefore, we find there are no factual issues
warranting a hearing with respect to whether the Respondent refused to
furnish the information sought by the Union.
The Respondent also raises in its amended answer and supplemental
response to the Notice to Show Cause the same argument regarding the
authority of the Regional Director to issue the consolidated complaint
that we have found to be without merit.
It is well established that information concerning the
terms and conditions of employment of unit employees is
presumptively relevant for purposes of collective bar-
gaining and must be furnished on request, except for so-
cial security numbers. See, e.g., Metro Health Founda-
tion, Inc., 338 NLRB 802, 803 (2003); St. Clair Die
Casting, LLC, 341 NLRB No. 144 (2004) (not reported
in Board volumes), enfd. 423 F.3d 843 (8th Cir. 2005),
and cited cases. The Respondent has not asserted any
basis for rebutting the presumptive relevance of the in-
formation. Rather, the Respondent raises as an affirma-
tive defense its contention, rejected above, that the Union
was improperly certified. We find that the Respondent
unlawfully refused to furnish the information sought by
the Union.4
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 Delaware cor-
poration with a facility in Burlington, New Jersey, the
Plant, has been engaged in the repair, retrieval and modi-
fication of pallets.5
During the 12-month period preceding issuance of the
consolidated complaint, the Respondent, in conducting
its business operations described above, purchased and
received at the Plant goods valued in excess of $50,000
directly from suppliers located outside the State of New
Jersey.
We find that the Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on Decem-
ber 20, 2012, the Union was certified on April 2, 2014,
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit:

4 The Board has held that employee social security numbers are not
presumptively relevant and that the union, therefore, must demonstrate
the relevance of such information. Maple View Manor, 320 NLRB
1149, 1151 fn. 2 (1996). Here, the Union did not specify in its April 4
letter why it wanted this information nor has it otherwise demonstrated
its relevance. This does not, however, excuse the Respondent’s failure
to provide the Union with all the other information it requested in this
letter. Id.
5 In its amended answer, the Respondent admits that it has been en-
gaged in providing a complete range of pallet management options to
businesses including retrieving, reconditioning, and resupplying wood
pallets.

PALLET COS. 341
All full-time and regular part-time truck drivers and
production employees, including nailers, saw room op-
erators, and fork lift drivers employed by the Employer
at its facility currently located at 320 Dulty’s Lane, Site
265, Burlington, New Jersey 08016; but excluding all
other employees, managers, guards and supervisors as
defined in the Act.

The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
B. Refusal to Bargain
By letter dated April 4, 2014, the Union requested that
the Respondent meet and bargain with it as the exclusive
collective-bargaining representative of the unit. By letter
dated April 4, 2014, the Union requested that the Re-
spondent furnish it with the information set forth above
that is necessary for, and relevant to, the Union’s per-
formance of its duties as the exclusive collective-
bargaining representative of the unit. By letter dated
April 25, 2014, the Respondent refused to recognize the
Union as the exclusive collective-bargaining representa-
tive of the unit, bargain with the Union in good faith, and
provide information requested by the Union regarding
the unit’s terms and conditions of employment.
We find that this failure and refusal constitutes an un-
lawful failure and refusal to recognize and bargain with
the Union in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By failing and refusing since April 25, 2014, to recog-
nize and bargain with the Union as the exclusive collec-
tive-bargaining representative of employees in the ap-
propriate unit, and by failing to provide the Union with
requested information regarding the terms and conditions
of employees in the unit, 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 Respond-
ent to furnish the Union the information requested, with
the exception of employee social security numbers.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, Pallet Companies, Inc. a Subsidiary of
IFCO Systems N.A., Inc., Burlington, New Jersey, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
United Food and Commercial Workers Union, Local
1360 as the exclusive collective-bargaining representa-
tive of the employees in the bargaining unit.
(b) Failing and refusing to provide the Union with re-
quested information that is necessary to its role as the
exclusive collective-bargaining representative of the unit
employees.
(c) 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 exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit on terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:

All full-time and regular part-time truck drivers and
production employees, including nailers, saw room op-
erators, and fork lift drivers employed by the Employer
at its facility currently located at 320 Dulty’s Lane, Site
265, Burlington, New Jersey 08016; but excluding all
other employees, managers, guards and supervisors as
defined in the Act.

(b) Provide the Union with the information requested
in its letter of April 4, 2014, with the exception of em-
ployee social security numbers.
(c) Within 14 days after service by the Region, post at
its facility in Burlington, New Jersey, copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
4, after being signed by the Respondent’s authorized
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 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.”

342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If during the pendency of
these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondent at any
time since about April 25, 2014.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 4 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting 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
violated 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.

WE WILL NOT fail and refuse to recognize and bargain
with United Food and Commercial Workers Union, Lo-
cal 1360 as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit.
WE WILL NOT fail and refuse to furnish the Union with
requested information that is relevant and necessary to
the Union’s performance of its functions as the collec-
tive-bargaining representative of our unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the
exclusive collective-bargaining representative of our
employees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:

All full-time and regular part-time truck drivers and
production employees, including nailers, saw room op-
erators, and fork lift drivers employed by the Employer
at its facility currently located at 320 Dulty’s Lane, Site
265, Burlington, New Jersey 08016; but excluding all
other employees, managers, guards and supervisors as
defined in the Act.

WE WILL furnish to the Union in a timely manner the
information requested by it on April 4, 2014, with the
exception of employee social security numbers.
PALLET COMPANIES, INC., A SUBSIDIARY OF
IFCO SYSTEMS, N.A., INC.

The Board’s decision can be found at
www.nlrb.gov/case/04–CA–128224 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.