Adams Mfg. Co.

National Labor Relations Board - Board Decisions

Aug 16, 1996

321 N.L.R.B. 922 (N.L.R.B. 1996)

922
321 NLRB No. 135
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In its answer and response, the Respondent also asserts, as an af-
firmative defense, that the Union’s conduct (unspecified) between
October 1995 (when the Union was certified and requested bargain-
ing and the Respondent refused), and April 1996 (when the Union
filed the instant refusal-to-bargain charge), constitutes abandonment
of the bargaining unit. There is no contention, however, that the
Union failed to timely file the instant charge within the 10(b) 6-
month limitations period. Accordingly, we reject the Respondent’s
affirmative defense as without merit. See Sunnyland Refining Co.,
250 NLRB 1180, 1181 (1980), enfd. mem. 657 F.2d 1249 (5th Cir.
1981).
Adams Manufacturing Company, Inc. and Bakery,
Confectionery and Tobacco Workers Inter-
national Union, Local 19, Industrial Division.
Case 8–CA–28187
August 16, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
Pursuant to a charge filed on April 15, 1996, the
General Counsel of the National Labor Relations
Board issued a complaint and amendment thereto on
May 13 and 30, 1996, respectively, alleging that the
Respondent has violated Section 8(a)(5) and (1) of the
National Labor Relations Act by refusing the Union’s
request to bargain following the Union’s certification
in Case 8–RC–15230. (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 and amended answer
admitting in part and denying in part the allegations in
the complaint as amended, and asserting certain affirm-
ative defenses.
On July 10, 1996, the General Counsel filed a Mo-
tion for Summary Judgment. On July 12, 1996, the
Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. On July 26, 1996, the Respond-
ent filed a response.
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 and response, the Respondent admits
its refusal to bargain, but attacks the validity of the
certification on the basis of its objection to the election
in the representation proceeding that the Union had
provided eligible voters with various items of value for
the purpose of securing their votes.1
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. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, we grant the Motion for Summary Judg-
ment. On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Ohio cor-
poration, with an office and place of business in
Cleveland, Ohio, has been engaged in the manufacture
of commercial and residential heating equipment. An-
nually, the Respondent, in conducting its business op-
erations described above, purchases and receives at its
Cleveland facility goods valued at more than $50,000
directly from points outside the State of Ohio. We find
that the Respondent 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 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, 1995, the
Union was certified on October 17, 1995, as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit:
All production and maintenance employees in-
cluding employees in the burner, humidifier, air
cleaner, furnace, unit heater, shipping, welding
and painting departments and group leaders em-
ployed by the Respondent at 9790 Midwest Ave-
nue, Cleveland, Ohio, but excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act. The
Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since October 23, 1995, the Union has requested the
Respondent to bargain, and since October 30, 1995,
the Respondent has refused. We find that this refusal
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 October 30, 1995, to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
923ADAMS MFG. CO.
2 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 Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
unit, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 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.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent 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, Adams Manufacturing Company, Inc.,
Cleveland, Ohio, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Bakery, Confectionery
and Tobacco Workers International Union, Local 19,
Industrial Division as the exclusive bargaining rep-
resentative of the employees in the bargaining unit.
(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 production and maintenance employees in-
cluding employees in the burner, humidifier, air
cleaner, furnace, unit heater, shipping, welding
and painting departments and group leaders em-
ployed by the Respondent at 9790 Midwest Ave-
nue, Cleveland, Ohio, but excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post
at its facility in Cleveland, Ohio, copies of the attached
notice marked ‘‘Appendix.’’2 Copies of the notice, on
forms provided by the Regional Director for Region 8
after being signed by the Respondent’s authorized rep-
resentative, 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
altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business 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 April 15, 1996.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification 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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Bakery, Con-
fectionery and Tobacco Workers International Union,
Local 19, Industrial Division as the exclusive rep-
resentative of the employees in the bargaining unit.
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 production and maintenance employees in-
cluding employees in the burner, humidifier, air
cleaner, furnace, unit heater, shipping, welding
and painting departments and group leaders em-
ployed by us at 9790 Midwest Avenue, Cleve-
land, Ohio, but excluding all office clerical em-
ployees, professional employees, guards and su-
pervisors as defined in the Act.
ADAMS MANUFACTURING COMPANY,
INC.