Contech Division

National Labor Relations Board - Board Decisions

Dec 9, 1996

322 N.L.R.B. 111 (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.
Contech Division, SPX Corporation and Inter-
national Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer­
ica (UAW), AFL–CIO. Case 7–CA–39061
December 9, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND FOX
Pursuant to a charge filed on October 4, 1996, the
General Counsel of the National Labor Relations
Board issued a complaint on October 8, 1996, alleging
that the Respondent 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 cer­
tification in Case 7–RC–20485. (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 com­
plaint.
On November 4, 1996, the General Counsel filed a
Motion for Summary Judgment. On November 5,
1996, 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 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
In its answer, the Respondent admits its refusal to
bargain, but denies that the Union is the exclusive bar-
gaining representative of the unit employees and at-
tacks the validity of the certification on the basis of its
objection to the holding of a second election in the
representation proceeding. The Respondent contends
that the second election was improperly and wrong-
fully ordered and is thus invalid.1
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
1 320 NLRB No. 52 (1995).
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.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
with an office and places of business in Dowagiac,
Michigan, has been engaged in the manufacture and
nonretail sales of automotive parts. During the 12-
month period ending December 31, 1995, the Re­
spondent, in conducting its business operations de-
scribed above, sold and shipped from its Dowagiac,
Michigan facilities goods valued in excess of $50,000
directly to points located outside the State of Michi­
gan. We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that the Union is a labor organi­
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the second election held on March 13,
1996, the Union was certified on August 5, 1996, as
the exclusive collective-bargaining representative of
the employees in the following appropriate unit:
All production and maintenance employees em­
ployed by the Respondent at its facilities located
at 51241 M-51 North, Dowagiac, Michigan, but
excluding all office clerical employees, 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 August 20, 1996, and September 24, 1996, the
Union has requested the Respondent to bargain and,
since September 30, 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 30, 1996, to
bargain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
2 Member Fox did not participate in the underlying representation
proceeding. However, she agrees with her colleagues that the Re­
spondent has raised no new issues in this ‘‘technical’’ 8(a)(5) pro­
ceeding warranting a hearing.
322 NLRB No. 111
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, Contech Division, SPX Corporation,
Dowagiac, Michigan, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Union,
United Automobile, Aerospace and Agricultural Imple­
ment Workers of America (UAW), AFL–CIO, as the
exclusive 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 employees em­
ployed by the Respondent at its facilities located
at 51241 M-51 North, Dowagiac, Michigan, but
excluding all office clerical employees, guards
and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post
at its facilities in Dowagiac, Michigan, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the
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
notice, on forms provided by the Regional Director for
Region 7 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 4, 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 9, 1996
������������������
William B. Gould IV, Chairman
������������������
Margaret A. Browning, Member
������������������
Sarah M. Fox, 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 International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), AFL–CIO, 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.’’
CONTECH DIVISION 3
terms and conditions of employment for our employees
in the bargaining unit:
All production and maintenance employees em­
ployed by us at our facilities located at 51241 M-
51 North, Dowagiac, Michigan, but excluding all
office clerical employees, guards and supervisors
as defined in the Act.
CONTECH DIVISION, SPX CORPORATION