Clark United Corp.

National Labor Relations Board - Board Decisions

Oct 18, 1995

319 N.L.R.B. 328 (N.L.R.B. 1995)

328
319 NLRB No. 52
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Although the Respondent’s answer (par. 11) denies the allegation
that these subjects are mandatory subjects of collective bargaining,
it appears to do so solely on the basis of the Respondent’s conten-
tion that the Union’s certification as the exclusive bargaining rep-
resentative was improper. Thus, in par. 12 of its answer, the Re-
spondent admits that it engaged in the alleged unilateral conduct
without giving the Union prior notice and an opportunity to bargain
‘‘because the representation election was not properly conducted and
the Union was not properly certified as the exclusive bargaining
agent of the Unit and, therefore, the Respondent had no obligation
to notify the Union or afford the Union an opportunity to bargain
with Respondent.’’ Further, the Respondent has not filed a response
to the Notice to Show Cause, and thus has not disputed the General
Counsel’s contention in the Motion for Summary Judgment that
there are no genuine issues of material fact warranting a hearing.
Accordingly, we find that the Respondent’s denial in its answer
raises no issues warranting a hearing.
Clark United Corporation and Sheet Metal Work-
ers International Association, AFL–CIO, CLC,
Local Union No. 68. Cases 16–CA–17147 and
16–CA–17284
October 18, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
Pursuant to charges filed on January 17 and March
25, 1995, and an amended charge filed on April 4,
1995, the General Counsel of the National Labor Rela-
tions Board issued a consolidated complaint on August
25, 1995, alleging that the Respondent has violated
Section 8(a)(5) and (1) of the National Labor Relations
Act by making certain unilateral changes following the
Union’s election in Case 16–RC–9745. (Official notice
is taken of the ‘‘record’’ in the representation proceed-
ing 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
admitting in part and denying in part the allegations in
the consolidated complaint.
On September 18, 1995, the General Counsel filed
a Motion for Summary Judgment. On September 19,
1995, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted.
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 that it made the
alleged unilateral changes following the election with-
out providing the Union prior notice or an opportunity
to bargain, but contends that the election was improp-
erly conducted and that the Union’s subsequent certifi-
cation was therefore improper.
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
At all material times, the Respondent, a Delaware
corporation with an office and place of business in
Dallas, Texas, has been engaged in the business of
manufacturing attic ventilation fans. During the 12-
month period preceding issuance of the consolidated
complaint, the Respondent, in conducting its business
operations, purchased and received goods and materials
valued in excess of $50,000 directly from points lo-
cated outside the State of Texas. We find that the Re-
spondent 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
The following employees of the Respondent (the
unit) constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
INCLUDED: All production and maintenance em-
ployees of the Employer located at its 3000 West
Commerce Street, Dallas, Texas facility only.
EXCLUDED: All other employees, including office
clerical employees, supervisors, including assistant
supervisors, and guards as defined in the Act.
On November 18, 1994, a representation election
was conducted among the employees in the unit and,
on June 6, 1995, the Union was certified as the exclu-
sive collective-bargaining representative of the unit.
The Union continues to be the exclusive representative
of the unit employees under Section 9(a) of the Act.
On about January 6, 1995, the Respondent changed
the wages of its unit employees. In addition, in January
1995, the Respondent unilaterally commenced using
employees from a temporary service to perform bar-
gaining unit work. These subjects are mandatory sub-
jects of collective bargaining.1 Nevertheless, the Re-
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329CLARK UNITED CORP.
2 In a prior unfair labor practice proceeding involving the Re-
spondent (Case 16–CA–17449) we found that the Respondent had
violated Sec. 8(a)(5) and (1) of the Act by refusing the Union’s re-
quest to bargain following the Union’s June 6, 1995 certification,
and ordered the Respondent to bargain with the Union on request.
318 NLRB No. 35 (Aug. 15, 1995) (not reported in Board volumes).
The Board generally declines to issue a second bargaining order
where the first order is still extant and no useful purpose would be
served by a second order. See Canton Sign Co., 186 NLRB 237
(1970). However, where as here the allegations involve unilateral
changes which would support remedies that were not included in the
prior proceeding, the Board has issued a second bargaining order.
See, e.g., Chicago Educational Television Assn., 308 NLRB 103 fn.
1 (1992); and Eagle Material Handling, Inc., 227 NLRB 174, 178
fn. 18 (1976). Accordingly, consistent with this precedent, we shall
issue such an order here.
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
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.’’
spondent engaged in the foregoing conduct without
prior notice to the Union and without affording the
Union an opportunity to bargain with respect to the
changes and their effects. We find that by doing so the
Respondent violated Section 8(a)(5) and (1) of the Act,
as alleged. See Mike O’Connor Chevrolet, 209 NLRB
701 (1974), enf. denied on other grounds 512 F.2d 684
(8th Cir. 1975).
CONCLUSIONS OF LAW
By unilaterally changing the wages of its employees
and unilaterally commencing the use of employees
from a temporary service to perform bargaining unit
work without providing the Union prior notice or an
opportunity to bargain with respect to the changes and
their effects, the Respondent has engaged in unfair
labor practices 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 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
concerning the wages of unit employees and the use of
employees from a temporary service to perform unit
work, and, if an understanding is reached, to embody
the understanding in a signed agreement.2 We shall
further order the Respondent to make the unit employ-
ees whole for any losses incurred as a result of its un-
lawful unilateral changes. Backpay shall be computed
in accordance with Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971),
with interest as prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Clark United Corporation, Dallas, Texas,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Sheet Metal Workers
International Association, AFL–CIO, CLC, Local
Union No. 68 as the exclusive bargaining representa-
tive of the employees in the following appropriate bar-
gaining unit, by unilaterally changing the wages of unit
employees and unilaterally commencing the use of em-
ployees from a temporary service to perform bargain-
ing unit work without providing the Union prior notice
or an opportunity to bargain with respect to the
changes and their effects:
INCLUDED: All production and maintenance em-
ployees of the Employer located at its 3000 West
Commerce Street, Dallas, Texas facility only.
EXCLUDED: All other employees, including office
clerical employees, supervisors, including assistant
supervisors, and guards as defined in the Act.
(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 regarding the
wages of unit employees and the use of employees
from a temporary service to perform bargaining unit
work and, if an understanding is reached, embody the
understanding in a signed agreement.
(b) Make the unit employees whole for any losses
incurred as a result of its unlawful unilateral changes,
with interest, as set forth in the remedy section of this
decision.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its facility in Dallas, Texas, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the
notice, on forms provided by the Regional Director for
Region 16 after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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330 DECISIONS 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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Sheet Metal
Workers International Association, AFL–CIO, CLC,
Local Union No. 68 as the exclusive representative of
the employees in the following appropriate bargaining
unit, by unilaterally changing the wages of unit em-
ployees and unilaterally commencing the use of em-
ployees from a temporary service to perform bargain-
ing unit work without providing the Union prior notice
or an opportunity to bargain over the changes and their
effects:
INCLUDED: All production and maintenance em-
ployees located at our 3000 West Commerce
Street, Dallas, Texas facility only.
EXCLUDED: All other employees, including office
clerical employees, supervisors, including assistant
supervisors, and guards as defined in the Act.
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 con-
cerning the wages of the unit employees and the use
of employees from a temporary service to perform unit
work, and put in writing and sign any agreement
reached.
WE WILL make the unit employees whole for any
losses incurred as a result of our unlawful unilateral
changes, with interest.
CLARK UNITED CORPORATION
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