Chardon Rubber Co.

National Labor Relations Board - Board Decisions

Sep 20, 2001

335 N.L.R.B. 1189 (N.L.R.B. 2001)

CHARDON RUBBER CO. 1189
Chardon Rubber Company and United Steelworkers
of America, AFL–CIO. Case 8–CA–32420
September 20, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
Pursuant to a charge filed on May 21, 2001, the Gen-
eral Counsel of the National Labor Relations Board is-
sued a complaint on June 8, 2001, alleging that the Re-
spondent has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act by refusing the Union’s re-
quest to bargain following the Union’s certification in
Case 8–RC–16104. (Official notice is taken of the “re-
cord” 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, with affirmative defenses,
admitting in part and denying in part the allegations in
the complaint.
On July 2, 2001, the General Counsel filed a Motion
for Summary Judgment. On July 9, 2001, the Board is-
sued 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.
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 its refusal to bar-
gain but attacks the validity of the certification on the
basis that shift leaders were improperly excluded from
the bargaining unit in the representation proceeding.1

1 The Respondent’s answer also denies that the certified unit is ap-
propriate. The Respondent, however, stipulated that this unit was ap-
propriate in the underlying representation proceeding. Any questions
regarding the appropriateness of the unit could and should have been
raised in the representation proceeding. Playhouse Square Foundation,
291 NLRB 995 fn. 1 (1988), enf. denied on other grounds 942 F.2d 369
(6th Cir. 1991).
2 By way of an affirmative defense, the Respondent asserts that the
charge did not name the proper employer as a party and was not prop-
erly served. Although the charge contained a typographical error in the
Respondent’s name, the correct name and address were listed in the
affidavit of service and the Respondent was correctly identified in the
complaint. In addition, the Board has long held that procedural re-
quirements regarding proof of service should be liberally construed,
and that when charges have in fact been received, technical defects in
the form of service do not affect the validity of service. Control Ser-
vices, 303 NLRB 481 (1991), enfd. mem. 961 F.2d 1568 (3d Cir.
1992).
The Respondent further asserts that the Regional Director improp-
erly shifted the burden to the Respondent to show that the shift leaders
were not supervisors, contrary to NLRB v. Kentucky River Community
Care, Inc., 532 U.S. 706 (2001). The hearing officer in his report on
challenged ballots thoroughly analyzed the evidence presented by the
Union to establish that the shift leaders are supervisors. He did not
shift the burden of proof on this issue to the Respondent.
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.2 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). Accord-
ingly, we grant the Motion for Summary Judgment.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Ohio corpo-
ration with an office and place of business located in
Alliance, Ohio, has been engaged in the operation of a
rubber injection molding facility where it fabricates parts
for the appliance industry. Annually, in the course and
conduct of its business, the Respondent sells and ships
products valued in excess of $50,000 directly to points
located outside the State of Ohio.
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 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 October 6, 2000, the Un-
ion was certified on March 19, 2001, as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:
All production and maintenance employees employed
at the Employer’s 15825 Armour Road, Alliance, Ohio
facility, but excluding all managerial employees, office
clerical employees, confidential employees, profes-
sional employees, guards and supervisors as defined in
the Act.
The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
About April 2, 2001, the Union, by letter, requested
that the Respondent recognize and bargain, and, about

3 The Respondent’s requests that this matter be dismissed and that it
be awarded its costs, attorneys’ fees, and any other relief are therefore
denied.
335 NLRB No. 92
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1190
April 12, 2001, the Respondent refused.4 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 April 12, 2001, to recognize
and bargain with the Union as the exclusive collective-
bargaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac-
tices 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 Section
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 understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification 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, Chardon Rubber Company, Alliance, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Steelworkers of
America, AFL–CIO, as the exclusive bargaining repre-
sentative of the employees in the bargaining unit.
(b) 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.

4 The Respondent admits that by letter dated April 2, 2001, the Un-
ion requested it to recognize and bargain, and that by letter dated May
15, 2001, it refused. The Respondent denies that by letter dated April
12, 2001, it acknowledged the Union’s April 2, 2001 letter and implic-
itly refused to bargain. The Respondent’s April 12 letter, which the
General Counsel attached to its motion, clearly states that “we have
received your letter dated April 2, 2001 regarding your request to
schedule negotiations. We are continuing to consider our options and
will communicate with you regarding how we decide to respond.” The
Respondent has not contested the authenticity of this document. In
these circumstances, we find that the Respondent has effectively re-
fused to bargain with the Union since April 12, 2001, as alleged in the
complaint.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement:
All production and maintenance employees employed
at the Employer’s 15825 Armour Road, Alliance, Ohio
facility, but excluding all managerial employees, office
clerical employees, confidential employees, profes-
sional employees, guards and supervisors as defined in
the Act.
(b) Within 14 days after service by the Region, post at
its facility in Alliance, Ohio, copies of the attached no-
tice marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 8, after
being signed by the Respondent’s authorized representa-
tive, 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 Respon-
dent to ensure that the notices 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 proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since April 12, 2001.
(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 United Steel-
workers of America, AFL–CIO, as the exclusive repre-
sentative of the employees in the bargaining unit.
5 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice “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.’’
CHARDON RUBBER CO. 1191
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 bar-
gaining unit:
All production and maintenance employees employed
at our 15825 Armour Road, Alliance, Ohio facility, but
excluding all managerial employees, office clerical
employees, confidential employees, professional em-
ployees, guards and supervisors as defined in the Act.

CHARDON RUBBER COMPANY