Flex Products, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1986

278 N.L.R.B. 417 (N.L.R.B. 1986)

FLEX PRODUCTS 417
Flex Products, Inc. and Shopmen's Local Union 662
of the International Association of Bridge,
Structural and Ornamental Ironworkers, AFL-
CIO. Case 8-CA-15870
31, January 1986
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
Upon a charge filed by the Union 7 July 1982
and an amended charge filed 27 August 1982, the
General Counsel of the National Labor Relations
Board issued a complaint 26 November 1982 and
an amendment to complaint 6 July 1983 against the
Company, the Respondent, alleging that it has vio-
lated Section 8(a)(1) and (5) of the National Labor
Relations Act by refusing to recognize and bargain
with the Union as the exclusive bargaining repre-
sentative of its employees and by engaging in speci-
fied unilateral conduct. The Respondent filed an
answer, an amended answer, and an answer to the
amendment to the complaint. It admits in part and
denies in part the complaint allegations and submits
affirmative defenses.
On 6 September 1983 the General Counsel filed
a Motion for Summary Judgment with exhibits and
brief. On 12 September 1983 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 filed a response
and brief and a motion to 'strike. The General
Counsel filed a response to the Respondent's
motion.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
In May 1977 the Board certified the Union as the
exclusive collective-bargaining representative of
the Respondent's production and maintenance em-
ployees.' The Respondent and the Union later en-
tered into a collective-bargaining agreement effec-
tive from 4 May 1977 to 3 May 1980. On 30 June
1982 the Board issued a Decision and Order in
Case 8-CA-147322 in which it found, among other
things, that in November 1980 the Respondent
withdrew recognition from the Union in violation
of Section 8(a)(5) and (1) of the Act and thereafter
refused 'to bargain with the Union and unilaterally
a The appropriate unit comprises all full -time and regular part-time
production and maintenance employees, excluding all office clerical em-
ployees and professional employees , guards, and supervisors as defined in
the Act-
2 Flex Plastics, 262 NLRB 651 (1982) On 30 June 1982 the Respondent
changed its name from Flex Plastics , Inc. to Flex Products, Inc.
changed terms and conditions of employment. The
Board rejected the Respondent's contentions that it
had a good-faith doubt of the Union's majority
status reasonably based on objective considerations
and ordered the Respondent to recognize and bar-
gain with the Union. On 20 January 1984 a United
States court of appeals enforced the Board's
Order.3
The complaint in this case alleges that the Re-
spondent engaged in the following conduct in vio-
lation of Section 8(a)(5) and (1): refused to bargain
with the Union about 15 January 1982 and laid off
approximately 15 unit employees without giving
the Union notice or opportunity to bargain about
the conduct and its effects; changed a job classifi-
cation during the layoff thereby removing the job
from the unit and laying off employee Thomas
Strimbu; and notified the Union by letter about 22
June 1982 that it rejected Strimbu's grievance over
his discharge of 24 May 1982 and would not bar-
gain with the Union.
The Respondent admits that it engaged in the
conduct set out above, but denies that it thereby
violated the Act. In defense it argues that the issue
of the Respondent's obligation to recognize and
bargain with the Union was litigated in the previ-
ous unfair labor practice case and is res judicata;
the issue of the unilateral conduct is barred by Sec-
tion 10(b);4 and the issues concerning Strimbu are
not appropriate for determination on a motion for
summary judgment.
The res judicata and 10(b) defenses that the Re-
spondent has raised and briefed are legal questions
that -do not require an evidentiary hearing before
determination. While the Respondent argues that
issues regarding Strinibu should not be decided on
a summary judgment motion and should be set for
hearing, it does not specify factual issues that re-
quire determination. We see none. The complaint
does not. raise the merits of Strimbu's layoff, dis-
charge, or grievance.5 It alleges only that the Re-
spondent notified the Union that it rejected the
grievance and would not bargain with the Union,
matters that the Respondent admits in its answer.
Accordingly, we conclude that the issues raised by
the complaint may be decided on the motion
before us without hearing, and we grant the Gener-
al Counsel's Motion for Summary Judgment.
2 NLRB v. Flex Plastics, 726 F.2d 272 (6th Cir. 1984)
4 In pertinent part Sec . 10(b) provides that "no complaint shall issue
based upon any unfair labor practice occurring more than six months
prior to the filing of the charge with the Board."
5 Exhs G,H, and I relate to Strimbu's grievance, but we do not think
they prejudice the Respondent, and we deny its motion to strike them
and statements concerning Strimbu's discharge.
278 NLRB No. 59
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Ohio corporation with an
office and place of business in Midvale, Ohio, is en-
gaged in the manufacture of plastic products. An-
nually it sells and ships from the Midvale facility
products, goods, and materials valued in excess of
$50,000 directly to points outside the State of Ohio.
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 organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
About 15 January 1982 the Respondent laid off
approximately 15 employees and during the layoff
changed a job classification, thereby removing the
job from the bargaining unit. As a result of the job
classification change, it laid off employee Thomas
Strimbu. The Respondent admits that it engaged in
this conduct and did so without notifying the
Union or giving it an opportunity to negotiate and
bargain.6 At the time the Union was the exclusive
collective-bargaining representative of the Re-
spondent's employees as found by the Board and
the court of appeals.7 The Respondent's conduct
derogates the Union's representative status, and we
find no merit to its position that the conduct does
not violate the Act.
First, we reject the Respondent's contention that
the doctrine of res judicata precludes a determina-
tion of whether its conduct violates Section 8(a)(5).
The General Counsel does not attempt here to reli-
tigate the issue of the Union's continued representa-
tive status that was decided in Case 8-CA-14732,
and we accept the earlier finding that the Union is
the exclusive collective-bargaining representative
of the Respondent's employees. The complaint in
this case concerns employer acts that are different
from those considered in the earlier case, and dis-
position of that case does not procedurally bar this
one.
We also reject the Respondent's contention that
Section 10(b) bars the allegations concerning the 15
6 The Union was not required to make a futile demand to bargain over
the Respondent's conduct when it was presented a fait accomph by the
Respondent which was refusing generally to deal with the Union and de-
nying its representative status before the Board.
7 The Respondent acted at its peril in refusing to bargain with the
Union while the Board was considering the Union's representative status.
See Clements Wire & Mfg. Co, 257 NLRB 1058 (1981 ); John Cuneo, Inc.,
257 NLRB 551 (1981).
January 1982 layoffs. The original charge in this
case was filed 7 July 1982, within 6 months of the
alleged date the layoffs occurred. That charge as-
serts that the Respondent violated Section 8(a)(3)8
and (5) by terminating employee Strimbu's employ-
ment on 24 May 1982, by failing to bargain with
the Union about 23 June 1982 concerning a griev-
ance Strimbu filed, and by eliminating certain job
classifications in January 1982 without notifying
the Union.9 Although the charge does not assert
that the Respondent unilaterally laid off employees,
we fmd that the unilateral-layoff conduct alleged as
an 8(a)(5) violation in the complaint is closely asso-
ciated with the unilateral conduct alleged as- an
8(a)(5) violation in the charge, and that the origi-
nal, timely filed 8(a)(5) charge is sufficient to sup-
port the additional incidents of unilateral conduct
covered by the complaint.'0
Accordingly, we fmd that the Respondent violat-
ed Section 8(a)(5) and (1) of the Act by unilaterally
laying off employees and changing a job classifica-
tion in January 1982 and by refusing to bargain
with the Union in June 1982 about Strimbu's dis-
charge in May 1982.
CONCLUSIONS OF LAW
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 engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
To remedy the Respondent's failure in January
1982 to bargain over layoffs and a change in job
classification and its refusal in June 1982 to bargain
about Strimbu's discharge, we shall order it on re-
quest to bargain about these matters. To further
remedy the unlawful unilateral conduct by restor-
ing the situation that existed before it occurred, we
shall order the Respondent to offer the employees
who were laid off immediate and full reinstatement
to their former jobs or, if these jobs no longer
exist, to substantially equivalent positions, without
prejudice to their senority or any other rights or
privileges previously enjoyed, and to make them
whole for any loss of earnings and other benefits
8 The complaint does not allege that the Respondent violated Sec
8(a)(3).
9 An amended charge filed 27 August 1982 alleges a general refusal to
bargain in violation of Sec. 8(a)(5).
10 See NLRB v. Fant Milling Co, 360 U.S 301 (1959).
FLEX PRODUCTS
suffered as a result of the unfair labor practices.
Backpay shall be computed as prescribed in F. W
Woolworth Co., 90 NLRB 289 (1950), plus interest
as -computed in Florida Steel Corp., 231 NLRB 651
(1977) (see generally Isis Plumbing Co., 138 NLRB
716 (1962)).
ORDER
The National Labor Relations Board orders that
the Respondent, Flex Products, Inc., Midvale,
Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain by laying off employees
and changing job classifications without giving the
Union notice and opportunity to bargain.
(b) Refusing to bargain with the Union about
Thomas Strimbu's discharge.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit about the unilateral layoffs
and change in job classification, it made in January
1982 and about Thomas Strimbu's discharge in
May 1982:
All full-time and regular part-time production
and maintenance employees, excluding all
office clerical employees and professional em-
ployees, guards, and supervisors as defined in
the Act.
(b) Offer the employees unilaterally laid off in
January 1982 immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed.
(c) Make whole the employees unilaterally laid
off in January 1982 for any loss of earnings and
other benefits suffered as a result of the unfair
labor practices in the manner set forth in the
remedy section of this decision.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due- - under the terms of this
Order.
419
(e) Post at its facility in Midvale, Ohio, copies of
the attached notice marked "Appendix."" 1 Copies
of the notice, on forms provided by the Regional
Director for Region 8, after being signed by the
Respondent's authorized representative, shall be
posted, by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
1 i 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 Nation-
al 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."
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 ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Shopmen's
Local Union No. 662 of the International Associa-
tion of Bridge, Structural and Ornamental Iron-
workers, AFL-CIO as the exclusive representative
of the employees in the bargaining unit by laying
off employees and changing job classifications
without giving the Union notice and opportunity to
bargain and by refusing to bargain about Thomas
Strimbu's discharge.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union
about the unilateral layoffs and change in job clas-
sification we made in January 1982 and about
Thomas Strimbu's discharge in May 1982. The bar-
gaining unit is:
All full-time and regular part-time production
and maintenance employees, excluding all
office clerical employees and professional em-
ployees, guards, and supervisors as defined in
the Act.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer the employees unilaterally laid WILL make them whole for any loss of earnings
off in January 1982 immediate and full reinstate- and other benefits resulting from our unilateral
ment to their former jobs or , if those jobs no conduct, less any net interim earnings, plus interest.
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other FLEX PRODUCTS, INC.
rights or privileges previously enjoyed and wE