Cooper Tire & Rubber, Co.

National Labor Relations Board - Board Decisions

Mar 25, 2004

341 N.L.R.B. 64 (N.L.R.B. 2004)

NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Cooper Tire & Rubber Company and International
Brotherhood of Electrical Workers, Local 1634.
Case 18–CA–17152
March 25, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
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 following a rerun election. Pursuant to a charge filed
on January 13, 2004, the General Counsel issued the
complaint on January 29, 2004, alleging that the Respon-
dent has violated Section 8(a)(5) and (1) of the Act by
refusing the Union’s request to bargain following the
Union’s certification in Case 18–RC–17081. (Official
notice is taken of the “record” in the representation pro-
ceeding 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, and asserting affirmative defenses.
On February 17, 2004, the General Counsel filed a
Motion for Summary Judgment. On February 19, 2004,
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 March 10, 2004, the Respon-
dent 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
The Respondent admits its refusal to bargain, but con-
tests the validity of the certification on the ground that
the Board erred in setting aside the initial election, based
on the Union’s objection, and directing a second elec-
tion.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

1 The Board’s decision setting aside the initial election and ordering
a rerun election is reported at 340 NLRB No. 108 (2003).

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).
Accordingly, we grant the Motion for Summary Judg-
ment.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is engaged in the manufacture, distri-
bution and sale of tires at various facilities throughout
the United States, including a facility located in Cedar
Rapids, Iowa.
During the calendar year ending December 31, 2003,
the Respondent, in conducting its business operations
described above, purchased and received at its Cedar
Rapids, Iowa facility goods and services valued in excess
of $50,000 directly from sources located outside the
State of Iowa, and sold and shipped goods and services
valued in excess of $50,000 from its Cedar Rapids, Iowa
facility directly to points located outside the State of
Iowa.
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 second election held December 3, 2003,
the Union was certified on December 10, 2003, as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:

All full-time and regular part-time warehouse employ-
ees employed at its warehouse located at 5405 Ely
Road SW, Cedar Rapids, Iowa, but excluding office
clerical employees, plant clerical employees, managers
and guards and supervisors as defined in the Act.

The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
2 Chairman Battista dissented to the ordering of a second election in
the underlying representation case and would have found that the Em-
ployer did not engage in objectionable conduct warranting a new elec-
tion. 340 NLRB No. 108, slip op. at 3–4. While he remains of that
view, he agrees that the Respondent has not raised any new matters that
are properly litigable in this unfair labor practice case. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). In light of this,
and for institutional reasons, he agrees with the decision to grant the
General Counsel’s Motion for Summary Judgment.
341 NLRB No. 64
COOPER TIRE & RUBBER CO. 2
B. Refusal to Bargain
Since December 10, 2003, the Union has requested the
Respondent to bargain, and, since January 13, 2004, the
Respondent has refused. We find that the Respondent’s
conduct 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 January 13, 2004, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices affect-
ing 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, Cooper Tire & Rubber Company, Cedar
Rapids, Iowa, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with International Brother-
hood of Electrical Workers, Local 1634, as the exclusive
bargaining representative of the employees in the bar-
gaining 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 exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employment,
and if an understanding is reached, embody the under-
standing in a signed agreement:

All full-time and regular part-time warehouse employ-
ees employed at its warehouse located at 5405 Ely
Road SW, Cedar Rapids, Iowa, but excluding office
clerical employees, plant clerical employees, managers
and guards and supervisors as defined in the Act.

(b) Within 14 days after service by the Region, post at
its facility in Cedar Rapids, Iowa, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 18,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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 Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate 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 January 13, 2004.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. March 25, 2004

Robert J. Battista, Chairman

Wilma B. Liebman, Member

Dennis P. Walsh, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to bargain with International
Brotherhood of Electrical Workers, Local 1634, as the
exclusive representative of the employees in the bargain-
ing 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 bar-
gaining unit:

All full-time and regular part-time warehouse employ-
ees employed at our warehouse located at 5405 Ely
Road SW, Cedar Rapids, Iowa, but excluding office
clerical employees, plant clerical employees, managers
and guards and supervisors as defined in the Act.

COOPER TIRE & RUBBER COMPANY