Bandag, Inc.

National Labor Relations Board - Board Decisions

Dec 6, 1996

322 N.L.R.B. 112 (N.L.R.B. 1996)

1
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er­
rors so that corrections can be included in the bound volumes.
Bandag, Inc. and Local 922, United Steelworkers of
America, AFL–CIO, CLC. Case 11–CA–17210
December 6, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Pursuant to a charge filed by Local 922, United
Steelworkers of America, AFL–CIO, CLC (the Union
or Local 922) on October 1, 1996, the General Counsel
of the National Labor Relations Board issued a com­
plaint on October 9, 1996, alleging that the Respond­
ent 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 11–
RD–563. (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 an answer admitting in part and denying in
part the allegations in the complaint, and submitting an
affirmative defense.
On November 4, 1996, the General Counsel filed a
Motion for Summary Judgment and memorandum in
support. On November 6, 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 November 20, 1996, the Respondent 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 certifi­
cation based on 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. 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 following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is now, and has been at all times
material herein, an Iowa corporation engaged in the
operation of a tire retreading manufacturing facility lo­
cated in Oxford, North Carolina, and a related ware-
house facility located in Louisburg, North Carolina.
During the 12-month period preceding the issuance of
the complaint, the Respondent purchased and received
at its Oxford and Louisburg, North Carolina facilities
goods and materials valued in excess of $50,000 di­
rectly from points outside the State of North Carolina.
During the same period, the Respondent sold and
shipped from its Oxford and Louisburg, North Carolina
facilities products valued in excess of $50,000 directly
to points outside the State of North Carolina.
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 organiza­
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the decertification election held March
28, 1996, the Union was certified on August 27, 1996,
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit:
All production and maintenance associates, in­
cluding process technicians employed by the Em­
ployer at its Oxford, North Carolina, and
Louisburg, North Carolina, facilities; excluding
office clerical associates, professional associates,
and 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 about July 1, 1995,1 the Union has requested
the Respondent to bargain, and, since about September
20, 1996, 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 September 20, 1996, to
bargain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
1 About July 1, 1995, United Rubber, Cork, Linoleum & Plastic
Workers of America, AFL–CIO merged with United Steelworkers of
America, AFL–CIO, CLC, and Local 922 became the exclusive col­
lective-bargaining representative of the unit.
322 NLRB No. 112
2 DECISIONS 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, Bandag, Inc., Oxford and Louisburg,
North Carolina, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with Local 922, United
Steelworkers of America, AFL–CIO, CLC, as the ex­
clusive bargaining representative 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 associates, in­
cluding process technicians employed by the Em­
ployer at its Oxford, North Carolina, and
Louisburg, North Carolina, facilities; excluding
office clerical associates, professional associates,
and guards and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post
at its facility in Oxford, North Carolina, copies of the
attached notice marked ‘‘Appendix.’’2 Copies of the
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
notice, on forms provided by the Regional Director for
Region 11 after being signed by the Respondent’s au­
thorized representative, shall be posted by the Re­
spondent 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 no­
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro­
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re­
spondent at any time since October 1, 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.
Dated, Washington, D.C. December 6, 1996
������������������
William B. Gould IV, Chairman
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Sarah M. Fox, Member
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John E. Higgins, Jr., Member
(SEAL) 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 the National Labor Relations Act and has or­
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Local 922,
United Steelworkers of America, AFL–CIO, CLC, as
the exclusive representative 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
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
BANDAG, INC. 3
terms and conditions of employment for our employees Louisburg, North Carolina, facilities; excluding
in the bargaining unit: office clerical associates, professional associates,
All production and maintenance associates, in- and guards and supervisors as defined in the Act.
cluding process technicians employed by the Em­

ployer at its Oxford, North Carolina, and BANDAG, INC.