Concrete Form Walls, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 2006

347 N.L.R.B. 1299 (N.L.R.B. 2006)

CONCRETE FORM WALLS, INC.
347 NLRB No. 116
1299
Concrete Form Walls, Inc. and Alabama Carpenters
Regional Council, Local 127. Case 10–CA–36280
August 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on May 23, 2006, the
General Counsel issued the complaint on May 26, 2006,
alleging that the Respondent has violated Section 8(a)(5)
and (1) of the Act by refusing the Union’s request to bar-
gain following the Union’s certification in Case 10–RC–
15381. (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 admitting in part and denying in part the
allegations in the complaint.
On June 13, 2006, the General Counsel filed a Motion
for Summary Judgment. On June 15, 2006, the Board
issued an order transferring the proceeding to the Board
and a Notice to Show Cause why the motion should not
be granted. The Respondent did not file 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
The Respondent admits its refusal to bargain, but con-
tests the validity of the Union’s certification on the
ground that the Board erred in ordering the opening and
counting of seven determinative challenged ballots in the
representation proceeding.1
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. 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).

1 346 NLRB No. 80 (2006). On April 25, 2006, pursuant to the
Board’s direction, the seven determinative challenged ballots were
opened and counted by the Regional Director and a final revised tally
of ballots issued, which showed that a majority of valid votes had been
cast for the Union. Accordingly, the Union was certified on May 3,
2006.
Accordingly, we grant the General Counsel’s Mo-
tion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an Alabama
corporation with an office and place of business in
Birmingham, Alabama (the Respondent’s facility), has
been engaged in erecting concrete walls in the building
and construction industry.
During the 12-month period preceding issuance of
the complaint, the Respondent, in conducting its busi-
ness operations described above, derived gross reve-
nues in excess of $50,000, in performing services for
various Alabama enterprises, which enterprises, in
turn, on an annual basis, purchase and receive goods
valued in excess of $50,000 in interstate commerce,
directly from suppliers located outside the State of
Alabama and/or ship goods to or perform services val-
ued in excess of $50,000, for companies located out-
side the State of Alabama.
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 Alabama Carpenters Re-
gional Council, Local 127 (the Union) is a labor or-
ganization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held June 24, 2003, the Un-
ion was certified on May 3, 2006, as the exclusive col-
lective-bargaining representative of the employees in
the following appropriate unit:
All production and construction employees; exclud-
ing office clerical employees, supervisors and guards
as defined by the Act.
The Union continues to be the exclusive representa-
tive under Section 9(a) of the Act.
B. Refusal to Bargain
The Union, by letter dated May 18, 2006, requested
that the Respondent recognize and bargain with it as
the exclusive collective-bargaining representative of
the employees in the certified unit.
By letter dated May 22, 2006, the Respondent re-
fused the Union’s request for bargaining. We find that
this refusal constitutes an unlawful refusal to bargain
in violation of Section 8(a) (5) and (1) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1300
CONCLUSION OF LAW
By refusing since May 22, 2006, to bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the appropriate unit, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and Sec-
tion 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.2
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation 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, Concrete Form Walls, Inc., Birmingham,
Alabama, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with Alabama Carpenters Re-
gional Council, Local 127, as the exclusive bargaining
representative 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.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-

2 Although this bargaining order is based upon the certification, the
Board remains of the view that a bargaining order is also warranted
under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). See Concrete
Form Walls, Inc., 346 NLRB No. 80, slip op. at 7–10 (2006). Thus,
even if a reviewing court disagrees with the disposition of the chal-
lenged ballots and sets aside the certification, the Board believes that a
bargaining order would nonetheless be warranted. In this regard, we
note that a finding of ineligibility as to the seven employees would not
destroy the Union’s card majority status.
Member Schaumber agrees that a bargaining order based upon the
certification is appropriate but he dissented from the issuance of the
bargaining order under Gissel; see 346 NLRB No. 80, slip op. at 10–12,
and hence does not agree with the views expressed in the above para-
graph.
priate unit on terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement:
All production and construction employees; exclud-
ing office clerical employees, supervisors and guards
as defined by the Act.
(b) Within 14 days after service by the Region, post
at its facility in Birmingham, Alabama, copies of the
attached notice marked “Appendix.”3 Copies of the
notice, on forms provided by the Regional Director for
Region 10, after being signed by the Respondent’s
authorized 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 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 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
Respondent at any time since May 22, 2006.
(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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your
benefit and protection

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.”
CONCRETE FORM WALLS, INC. 1301
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain with Alabama Carpen-
ters Regional Council, Local 127, as the exclusive repre-
sentative 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 construction employees; exclud-
ing office clerical employees, supervisors and guards
as defined by the Act.
CONCRETE FORM WALLS, INC.