A. H. Hansen Sales

National Labor Relations Board - Board Decisions

May 7, 1991

302 N.L.R.B. 846 (N.L.R.B. 1991)

846
302 NLRB No. 138
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In its answer the Respondent, inter alia, denies pars. 7(a) and (b) of the
complaint which allege that the Union on or about September 26, 1989, and
April 12, 1990, requested the Respondent to recognize and bargain with it, and
that since on or about April 30, 1990, the Respondent has refused. However,
the General Counsel has submitted copies of letters dated September 26, 1989,
and April 12, 1990 (with proof of service by certified mail on the Respondent
attached thereto), sent by the Union to the Respondent, requesting bargaining
and certain specified information. The General Counsel also submitted a copy
of an April 30, 1990 letter from Respondent to the Union, containing the
Company’s letterhead and signed by the Respondent’s president, John
Kammeier, acknowledging receipt of the Union’s April 12, 1990 letter, but re-
fusing the Union’s bargaining and information request because it disagreed
with the Board’s decision in the underlying representation proceeding, and be-
cause it doubted that a majority of its employees freely chose the Union to
represent them. The Respondent does not contest the authenticity of the letters.
It contends, in its brief to the Board, only that the letters are inadmissible as
evidence in this summary judgment motion because they are ‘‘unsubstantiated
by affidavit or otherwise.’’ The Respondent’s contention is without merit. The
Board’s summary judgment rules do not require that a Motion for Summary
Judgment be accompanied by supporting affidavits. See Sec. 102.24 of the
Board’s Rules and Regulations, as amended, 54 Fed. Reg. 38515 (Sept. 19,
1989). Further, even in court proceedings, under Rule 56(a) of the Federal
Rules of Civil Procedure, a party moving for summary judgment may do so
with or without supporting affidavits, and ‘‘[t]he court may consider any mate-
rial that would be admissible or usable at trial.’’ Wright, Miller & Kane, Fed-
eral Practice and Procedure: Civil 2d § 2721. In these circumstances, we find
that the Respondent has refused to bargain with the Union, as alleged in the
complaint. Further, the Respondent’s April 30, 1990 letter to the Union makes
clear that the Respondent is contending that it is under no legal obligation to
bargain with the Union solely on the grounds that the certification is invalid.
Accordingly, we find that the Respondent’s denials raise no material issues of
fact warranting a hearing.
We also find no merit in the affirmative defenses raised by the Respondent
in its answer. The charge in this case was filed on May 11, 1990, less than
2 weeks after the Respondent’s unlawful refusal to bargain, and is therefore
not barred by the 10(b) 6-month limitation period, as asserted by the Respond-
ent. Further, the documentary evidence submitted by the General Counsel in
support of the motion indicates that the Respondent, contrary to its assertion,
was duly served by certified mail with a copy of the complaint. The remaining
affirmative defenses—that the complaint fails to state a claim on which relief
can be granted, that the Board’s practices and procedures in this case do not
comply with the necessary requirements for a hearing under the Act, that the
Board’s actions in this case are arbitrary and capricious, and that the complaint
makes no reference to the record in the underlying representation case—raise
no material issues of fact requiring a hearing and do not preclude summary
judgment in this case.
2 The Union requested the Respondent to furnish it with (1) a list of each
employee within the bargaining unit, including his/her birth date, sex, marital
status, date of hire with the company, salary, job classification and job descrip-
tion (if available); (2) copy of house rules, policies, and any other written doc-
uments affecting the Respondent’s employees and their employment with the
Respondent; and (3) a detailed listing of any and all benefits employees enjoy
including, but not limited to, medical plan (carrier, type of plan, employer’s
cost and employee’s share of cost, if any), and retirement plan (carrier, type
of plan, plan document, contribution rate for both employer and employee).
3 See, e.g., Masonic Hall, 261 NLRB 436 (1982); Mobay Chemical Corp.,
233 NLRB 109 (1977).
A. H. Hansen Sales, Ltd. and Hawaii Teamsters and
Allied Workers, Local 996, affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO. Case 37–CA–2847
May 7, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On June 12, 1990, the General Counsel of the Na-
tional Labor Relations Board issued a complaint alleg-
ing that the Respondent has violated Section 8(a)(5)
and (1) of the National Labor Relations Act by refus-
ing the Union’s request to bargain and to furnish infor-
mation following the Union’s certification in Case 37–
RC–2990. (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 Respond-
ent filed its answer admitting in part and denying in
part the allegations in the complaint.
On March 15, 1991, the General Counsel filed a
Motion for Summary Judgment. On March 18, 1991,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondent filed a
timely response on April 8, 1991, and the General
Counsel filed a brief in reply to the Respondent’s re-
sponse on April 22, 1991.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits that it refused
to furnish the Union with certain requested informa-
tion, but denies that the information is relevant and
necessary to the Union’s role as bargaining representa-
tive, and that the Union requested bargaining and that
it has refused. The Respondent attacks the validity of
the certification on the basis of its objections to the
election 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.1 See Pitts-
burgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162
(1941). The Respondent, as noted, denies that the in-
formation 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 information
sought by the Union2 is presumptively relevant for
purposes of collective bargaining and must be fur-
nished on request.3 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 with regard to the Respondent’s refusal to
furnish the information sought by the Union. Accord-
ingly, we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
847A. H. HANSEN SALES
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Hawaii corporation with an of-
fice and place of business in Honolulu, Hawaii, is en-
gaged in the business of trucking and warehousing.
During the 12 months preceding the issuance of the
complaint, a representative period, the Respondent, in
the course and conduct of its business operations, pur-
chased and received at its Honolulu, Hawaii facility
products, goods, and materials valued in excess of
$50,000 directly from points and places located outside
the State of Hawaii. 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 on June 23, 1989, the
Union was certified on April 4, 1990, as the collective-
bargaining representative of the employees in the fol-
lowing appropriate unit:
All full-time and regular part-time employees em-
ployed by the Employer as tractor drivers, truck
drivers, forklift drivers, offloaders, warehousemen,
meat handlers, janitors, maintenance employees,
and checkers; but excluding all accounting and
confidential employees, professional employees,
guards and all clerical employees, customer serv-
ice employees, sales employees, supervisors, and
all other employees. The Union continues to be
the exclusive representative under Section 9(a) of
the Act.
B. Refusals to Bargain
On or about September 26, 1989, and again on April
12, 1990, the Union requested the Respondent to bar-
gain and to furnish it with information and, since on
or about April 30, 1990, the Respondent has refused.
We find that these refusals constitute unlawful refusals
to bargain in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By refusing on and after April 30, 1990, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit and
to furnish the Union with the requested information,
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 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.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by law, we shall construe the initial period of
the certification 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, A. H. Hansen Sales, Ltd., Honolulu, Ha-
waii, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Hawaii Teamsters and
Allied Workers, Local 996, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL–CIO as the exclusive
bargaining representative of the employees in the bar-
gaining unit, and refusing to furnish the Union infor-
mation that is relevant and necessary to its role as the
exclusive bargaining representative of the unit employ-
ees.
(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 em-
ployed by the Employer as tractor drivers, truck
drivers, forklift drivers, offloaders, warehousemen,
meat handlers, janitors, maintenance employees,
and checkers; but excluding all accounting and
confidential employees, professional employees,
guards and all clerical employees, customer serv-
ice employees, sales employees, supervisors, and
all other employees.
(b) On request, furnish the Union information that is
relevant and necessary to its role as the exclusive rep-
resentative of the unit employees.
848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
(c) Post at its facility in Honolulu, Hawaii, copies of
the attached notice marked ‘‘Appendix.’’4 Copies of
the notice, on forms provided by the Officer in Charge
for Subregion 37, after being signed by the Respond-
ent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places includ-
ing all places where notices to employees are custom-
arily posted. Reasonable 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 Officer in Charge 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 Hawaii Team-
sters and Allied Workers, Local 996, affiliated with
International Brotherhood 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 informa-
tion that is relevant and necessary to its role as the ex-
clusive bargaining representative of the unit employ-
ees.
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 em-
ployed by the Employer as tractor drivers, truck
drivers, forklift drivers, offloaders, warehousemen,
meat handlers, janitors, maintenance employees,
and checkers; but excluding all accounting and
confidential employees, professional employees,
guards and all clerical employees, customer serv-
ice employees, sales employees, supervisors, and
all other employees.
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.
A. H. HANSEN SALES, LTD.