Fused Solutions, LLC

National Labor Relations Board - Board Decisions

May 28, 2015

362 NLRB No. 95 (N.L.R.B. 2015)

362 NLRB No. 95
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Fused Solutions, LLC and United Food and Commer-
cial Workers, District Union Local One. Case
03–CA–098461
May 28, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
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 a charge filed by United Food
and Commercial Workers, District Union Local One (the
Union) on February 15, 2013, the Acting General Coun-
sel issued the complaint on February 22, 2013, alleging
that Fused Solutions, LLC (the Respondent) has violated
Section 8(a)(5) and (1) of the Act by refusing the Un-
ion’s requests to recognize and bargain and to furnish
relevant and necessary information following the Un-
ion’s certification in Case 03–RC–083193. (Official
notice is taken of the “record” in the representation pro-
ceeding as defined in the Board’s Rules and Regulations,
Sections 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 affirmative defenses.
On March 21, 2013, the Acting General Counsel filed
a Motion for Summary Judgment. On March 25, 2013,
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.
On May 6, 2013, the Board issued a Decision and Or-
der in this proceeding, which is reported at 359 NLRB
No.118. Thereafter, the Respondent filed a petition for
review in the United States Court of Appeals for the Dis-
trict of Columbia Circuit.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S. Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Thereafter, the Board
issued an order setting aside the Decision and Order, and
retained this case on its docket for further action as ap-
propriate.
On November 26, 2014, the Board issued a further De-
cision, Certification of Representative, and Notice to
Show Cause in Cases 03–CA–098461 and 03–RC–
083193, which is reported at 361 NLRB No. 119. That
Decision provided leave to the General Counsel to
amend the complaint on or before December 8, 2014, to
conform with the current state of the evidence, including
whether the Respondent had agreed to recognize and
bargain with the Union after the November 26, 2014 cer-
tification of representative issued. Notice was also given
for the parties to show cause by January 12, 2015, why
the motion should not be granted.
On January 12, 2015, the Respondent filed an opposi-
tion to the General Counsel’s motion, reiterating its posi-
tion that the decision to overrule the election objections
and certify the Union was made in error.
On January 22, 2015, the General Counsel filed a mo-
tion to amend the complaint, under Section 102.17 of the
Board’s Rules and Regulations. Thereafter, on February
10, 2015, the Board issued an Order Granting Motion to
Amend Complaint and Further Notice to Show Cause in
which it accepted the amended complaint, and directed
that the Respondent file an answer to the amended com-
plaint on or before February 24, 2015, and that cause be
shown, in writing, on or before March 3, 2015, as to why
the General Counsel’s Motion for Summary Judgment
should not be granted by the Board. On February 24,
2015, the Respondent filed an answer to the amended
complaint, and on March 3, 2015, the General Counsel
filed a response in support of the Motion for Summary
Judgment.1
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
provide information, but contests the validity of the certi-
fication on the basis of the issues raised in the representa-
tion proceeding.

1 The amended complaint adds “November 26, 2014” as the date the
Board certified the Union as the exclusive collective-bargaining repre-
sentative of the unit employees, alleges that about January 30, 2013,
and January 9, 2015, the Union requested that the Respondent recog-
nize and bargain with it as the exclusive collective-bargaining repre-
sentative of the unit employees, and alleges that since February 15,
2013, the Respondent has refused, and continues to refuse, to do so.
The amended complaint repeats the allegations from the original com-
plaint that the Respondent has failed, since February 15, 2013, to pro-
vide the Union with information it requested on January 15 and 30,
2013.
The amended answer admits the factual allegations of the complaint,
reiterates the arguments made in the underlying representation proceed-
ing that the Union engaged in conduct interfering with the results of the
election, and argues for the first time that the Regional Director lacked
authority to conduct the election at a time when the Board lacked a
quorum.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
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 there are no factual issues warranting a
hearing with respect to the Union’s request for infor-
mation. The complaint alleges, and the Respondent ad-
mits, that by letter dated January 15, 2013, the Union
requested the following information:
A. (1) Employee’s Name
(2) Employee’s Rate of Pay
(3) Employee’s Job Classification
(4) Employee’s date of hire
(5) Employee’s date of birth
(6) Employee’s status (full time and part time)
B. (1) Total hours worked per employee over the last
12-month period.
(2) Overtime Hours worked over the last 12-month
period.
C. (1) A copy of all current company personnel poli-
cies, practices or procedures including any statements
or descriptions regarding such personnel policies, prac-
tices or procedures.
(2) A copy of all company fringe benefit plans in-
cluding, pension, profit sharing, severance, stock incen-
tive, vacation, health and welfare, 401k Plan, legal ser-
vices, child care or any other plans which relate to the
employees.
(3) Copies of all current job descriptions.
D. Copies of any Company Wage or Salary Plans.
E. Identify each employee’s choice of health care.
F. Cost per month per employee to the employee
who selects Health Insurance.
G. Cost per month per employee to the employer to
provide Health Insurance.
The complaint further alleges, and the Respondent
admits, that by letter dated January 30, 2013, the Union
requested a list of all current employees along with home
addresses and phone numbers, and work schedules for
the next 2 weeks.
It is well established that the foregoing type of infor-
mation concerning the terms and conditions of employ-
ment of unit employees is presumptively relevant for
purposes of collective bargaining and must be furnished
on request. See, e.g. Metro Health Foundation, Inc., 338
NLRB 802 (2003). The Respondent has not asserted any
basis for rebutting the presumptive relevance of the in-
formation. Rather, the Respondent admits that it contin-
ues to refuse to provide the requested information and
raises as an affirmative 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.
As noted above, the Respondent also argues for the
first time that the Regional Director lacked authority to
conduct the election at a time when the Board lacked a
quorum. We reject this argument. First, since the Re-
spondent did not raise this issue previously, we find that
the Respondent is estopped from challenging the authori-
ty of the Regional Director at this time. See Mission
Produce, 362 NLRB No. 15, slip op. at 1 (2015). More-
over, the authority of a Regional Director to act in repre-
sentation case proceedings is derived from a 1961 dele-
gation from the Board, and that delegation has never
been revoked. Thus, the Regional Director was fully
empowered to process the representation petition and
conduct the election in this matter without regard to the
presence or absence of a Board quorum. Id. See also
Durham School Services, LP, 361 NLRB No. 66 (2014).
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 has been a lim-
ited liability company with an office and place of busi-
ness in Potsdam, New York (the facility) where it oper-
ates a call center.
Annually, the Respondent, in conducting its operations
described above, purchases and receives at its Potsdam,
New York facility goods valued in excess of $50,000
directly from points outside the State of New York.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union, United Food and
Commercial Workers, District Union Local One, is a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on July 26,
2012, the Union was certified on November 26, 2014, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
FUSED SOLUTIONS, LLC 3
All full-time and regular part-time Level 1, Level 2,
and Level 3 customer service support technicians em-
ployed by Respondent at its Potsdam, New York loca-
tion; excluding all office clerical employees, confiden-
tial employees, guards, and professional employees 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
On about January 30, 2013, and January 9, 2015, the
Union, in writing, requested that the Respondent bargain
collectively with it as the exclusive collective-bargaining
representative of the unit. Since about February 15,
2013, and continuing to date, the Respondent has failed
and refused to recognize and bargain with the Union as
the unit employees’ exclusive collective-bargaining rep-
resentative.
About January 15 and 30, 2013, the Union, by letters,
requested that the Respondent furnish it with the infor-
mation set forth above that is necessary for, and relevant
to, the Union’s performance of its duties as the exclusive
collective-bargaining representative of the unit. Since
about February 15, 2013, and continuing to date, the Re-
spondent has failed and refused to furnish the Union with
the requested information.
We find that these failures and refusals constitute an
unlawful 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 to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the employees in the unit and to furnish the
Union with requested information regarding the terms
and conditions of employment of unit employees, the
Respondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act.2

2 In Howard Plating Industries, 230 NLRB 178, 179 (1977), the
Board stated:
Although an employer’s obligation to bargain is established as of the
date of an election in which a majority of unit employees vote for union
representation, the Board has never held that a simple refusal to initiate
collective-bargaining negotiations pending final Board resolution of
timely filed objections to the election is a per se violation of Section
8(a)(5) and (1). There must be additional evidence, drawn from the
employer’s whole course of conduct, which proves that the refusal was
made as part of a bad-faith effort by the employer to avoid its bargain-
ing obligation.
No party has raised this issue, and we find it unnecessary to decide
in this case whether the unfair labor practice began on the date of Re-
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 recognize and bargain on request with the Un-
ion and, if an understanding is reached, to embody the
understanding in a signed agreement. We shall also or-
der the Respondent to furnish the Union with the infor-
mation it 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 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, Fused Solutions, LLC, Potsdam, New York,
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 District Union
Local One as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit.
(b) Failing and refusing to furnish the Union with re-
quested information that is relevant and necessary to the
Union’s performance of its functions as the collective-
bargaining representative of the Respondent’s unit em-
ployees.
(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 concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All full-time and regular part-time Level 1, Level 2,
and Level 3 customer service support technicians em-

spondent’s initial refusal to bargain at the request of the Union, or at
some point later in time. It is undisputed that the Respondent has con-
tinued to refuse to bargain since the Union’s certification and we find
that continuing refusal to be unlawful. Regardless of the exact date on
which Respondent’s admitted refusal to bargain became unlawful, the
remedy is the same.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
ployed by Respondent at its Potsdam, New York loca-
tion; excluding all office clerical employees, confiden-
tial employees, guards, and professional employees and
supervisors as defined in the Act.
(b) Furnish to the Union in a timely manner the in-
formation requested by the Union on January 15 and 30,
2013.
(c) Within 14 days after service by the Region, post at
its facility in Potsdam, New York, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily 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 custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed its facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since February 15, 2013.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 3 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.
Dated, Washington, D.C. May 28, 2015
Mark Gaston Pearce, Chairman
Kent Y. Hirozawa, Member
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

3 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.”
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, District
Union Local One as the exclusive collective-bargaining
representative of our 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 Level 1, Level 2,
and Level 3 customer service support technicians em-
ployed by us at our Potsdam, New York location; ex-
cluding all office clerical employees, confidential em-
ployees, guards, and professional employees and su-
pervisors as defined in the Act.
WE WILL furnish to the Union in a timely manner the
information requested by it on January 15 and 30, 2013.
FUSED SOLUTIONS, LLC
The Board’s decision can be found at
www.nlrb.gov/case/03-CA-098461 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.