All-Weather Architectural Aluminum

National Labor Relations Board - Board Decisions

Jul 16, 1981

256 N.L.R.B. 1235 (N.L.R.B. 1981)

ALL-WEATHER ARCHITECTURAL ALUMINUM 1235
All-Weather Architectural Aluminum, Inc. and Mill-
men, Cabinetmakers, Industrial Carpenters
Union, Local 550, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO.
Case 32-CA-3362
July 16, 1981
DECISION AND ORDER
Upon a charge filed on January 26, 1981, by
Millmen, Cabinetmakers, Industrial Carpenters
Union, Local 550, United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO, herein
called the Union, and duly served on All-Weather
Architectural Aluminum, Inc., herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 32, issued a complaint on February 19,
1981, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charge and complaint and notice of
hearing before an administrative law judge were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on December
19, 1980, following a Board election in Case 32-
RC-907,1 the Union was duly certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in unit B, one of the two
units found appropriate; and that, commencing on
or about December 23, 1980, and at all times there-
after, Respondent has refused, and continues to
date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative,
although the Union has requested and is requesting
it to do so. On March 2, 1981, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On March 30, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on April 3,
1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
has filed no response to the Notice To Show Cause
I Official notice is taken of the record in the representation proceed-
ing, Case 32-RC-907, as the term "record" is defined in Sees 102 68 nd
1
0 2.69(g) of the Board's Rules and Regulations. Series 8. as amended Seec
LTV Electroystem.s Inc., 166 NLRB 938 (1967), enfd 388 F 2d 683 (4th
Cir. 1968); Golden Age Beverage Co.. 167 NLRB 151 (1967), enfd 415
F.2d 26 (5th Cir 1969), InterYpe Co. v. Pencl. 269 F Supp 573
(D.C.Va 1967): Follerr Corp., 164 NLRB 378 (1967). enfd 197 F2d 91
(7th Cir 1968); Sec. 9(d) of the NLRA. as amended
256 NLRB No. 186
and, accordingly, the allegations of the Motion for
Summary Judgment stand uncontroverted.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
The order transferring proceeding to the Board
and Notice To Show Cause specifically states that
cause be shown, in writing on or before April 17,
1981, why the General Counsel's Motion for Sum-
mary Judgment should not be granted. On April
20, 1981, the Charging Party Union joined in the
motion. 2 According to the uncontroverted allega-
tions of the Motion for Summary Judgment, Re-
spondent has refused, and is continuing to refuse,
to bargain with the Union. No good cause to the
contrary having been shown, the allegations of the
Motion for Summary Judgment are deemed to be
admitted and are found to be true.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.3
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does
it allege that any special circumstances exist herein
which would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under, and ex-
isting by virtue of, the laws of the State of Califor-
nia, engaged in the manufacture and wholesale sale
and distribution of aluminum doors, windows, and
related products. During the past 12 months, Re-
spondent has sold or received goods or services
valued in excess of $50,000 to customers or busi-
ness enterprises within the State of California.
' i1n that joider it requested "rea,,lnahle tlirlrnl , Ifee for the frlo-
lous refusal io bargain." hich requcst is herebh en iled
a See Pirrhurgh Plaot (;la,, (o \ 1 ,R B. 13 S 146. Ih2 (1941).
Rules and Rcgutlliolis f Ihe Hoard. Sec, 1(2
7
(f) umd 102 h90c)
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Union, Millmen, Cabinetmakers, Industrial
Carpenters Union, Local 550, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO,
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE UNFAIR I.ABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time production
and maintenance employees and truck drivers
employed by Respondent at its 4055 Linden
Street, and 1851 5th Street, Oakland, Califor-
nia, facilities; excluding all office clerical em-
ployees, guards, and supervisors as defined in
the Act.4
2. The certification
On November 13, 1980, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 32, designated
the Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on December 19, 1980, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about December 23, 1980,
and January 12, 1981, and at all times thereafter,
the Union has requested Respondent to bargain
collectively with it as the exclusive collective-bar-
gaining representative of all the employees in the
above-described unit. Commencing on or about
December 23, 1980, and by letter dated January 14,
4 Said unit was Voting Unit B in the underlying represelltation cac. A
rerun in Voting Unit A, at a different location, resulted in a Cerlification
of Results of Election on January 8 981.
1981, and continuing at all times thereafter to date,
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the exclu-
sive representative for collective bargaining of all
employees in said unit.
Accordingly, we find that Respondent has, since
December 23, 1980, and by letter dated January 14,
1981, and at all times thereafter, refused to bargain
collectively with the Union as the exclusive repre-
sentative of the employees in the appropriate unit,
and that, by such refusal, Respondent has engaged
in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union
as the exclusive representative of all employees in
the appropriate unit and, if an understanding is
reached, embody such understanding in a signed
agreement.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. All-Weather Architectural Aluminum, Inc., is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
-- -------- - - __ - - ____
ALL-WEATHER ARCHITECTURAL ALUMINUM 1237
2. Millmen, Cabinetmakers, Industrial Carpenters
Union, Local 550, United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All full-time and regular part-time production
and maintenance employees and truck drivers em-
ployed by Respondent at its 4055 Linden Street,
and 1851 5th Street, Oakland, California, facilities;
excluding all office clerical employees, guards, and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. Since December 19, 1980, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about December 23, 1980,
and by letter dated January 14, 1981, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
All-Weather Architectural Aluminum, Inc., Oak-
land, California, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Millmen, Cabinet-
makers, Industrial Carpenters Union, Local 550,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All full-time and regular part-time production
and maintenance employees and truck drivers
employed by Respondent at its 4055 Linden
Street, and 1851 5th Street, Oakland, Califor-
nia, facilities; excluding all office clerical em-
ployees, guards, and supervisors as defined in
the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative
of all employees in the aforesaid appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at the 4055 Linden Street and 1851 Fifth
Street, Oakland, California, facilities copies of the
attached notice marked "Appendix." 5 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 32, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 32,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
b In the eent hal this Order is enforced hy a Judgment of a United
States Court of Appeals. the w~ords in the notice reading "Posted hb
Order of the Natiornal labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enlforcing an
Order of the National .ahor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAi LABOR REI.ATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Millmen, Cabinetmakers, Industrial Car-
penters Union, Local 550, United Brotherhood
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Carpenters and Joiners of America, AFL-
CIO, as the exclusive representative of the em-
ployees in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time produc-
tion and maintenance employees and truck
drivers employed by the Employer at its
4055 Linden Street, and 1851 5th Street,
Oakland, California, facilities; excluding all
office clerical employees, guards, and super-
visors as defined in the Act.
ALL-WEATHER
ALUMINUM, INC.
ARCHITECTURAL