Holt Products Co.

National Labor Relations Board - Board Decisions

Aug 21, 2003

339 N.L.R.B. 1076 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1076
Walco International, Inc. d/b/a Holt Products Com-
pany and United Steelworkers of America,
AFL–CIO–CLC. Case 30–CA–16488–1
August 21, 2003
DECISION AND ORDER
BY MEMBERS LIEBMAN, SCHAUMBER, AND ACOSTA
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 June 2, 2003, the Gen-
eral Counsel issued the complaint on June 20, 2003, al-
leging 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 30–RC–
6481. (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, and asserting affirmative
defenses.

On July 22, 2003, the General Counsel filed a Motion
for Summary Judgment. On July 24, 2003, 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 August 15, 2003, the Respondent 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
In its answer and response, the Respondent contests
the validity of the Union’s certification in the underlying
representation proceeding on the ground that the Board
improperly overruled Respondent’s objections to the
election in that proceeding.
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

1 Members Schaumber and Acosta did not participate in the Board’s
November 7, 2002 Order adopting, in the absence of timely-filed ex-
ceptions, the Acting Regional Director’s October 18, 2002 Report and
Recommendation on Objections, which recommended that two of the
We also find that the Respondent has not raised any is-
sues warranting a hearing with respect to its alleged re-
fusal to bargain. The Respondent’s answer admits that
the Union requested bargaining. Although the Respon-
dent’s answer denies that Respondent refused to do so,
nowhere in its answer or response to the Notice to Show
Cause does the Respondent contend that it has agreed to
meet and bargain with the Union. Nor does the Respon-
dent’s response to the Notice to Show Cause otherwise
dispute the General Counsel’s assertion in his motion
that Respondent is refusing to bargain. On the contrary,
the response acknowledges that “bargaining did not take
place.” Response at 2. Further, as indicated above, the
Respondent contends that the Union was improperly cer-
tified as the bargaining representative of the unit em-
ployees. In these circumstances, we find that Respon-
dent is refusing to bargain in order to contest the Union’s
certification, as alleged. See VIP Health Services, 324
NLRB No. 54, slip op. at 2 fn. 5 (1997) (not reported in
Board volumes), enfd. 164 F.3d 644 (D.C. Cir. 1999).
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, a corporation, with an office and
place of business in Madison, Wisconsin, is engaged in
the business of distributing agricultural, medical, and
livestock supplies.
During the past calendar year ending December 31,
2002, the Respondent purchased and received goods and
materials valued in excess of $50,000 directly from sup-
pliers located outside the State of Wisconsin.
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.

Respondent’s objections be overruled without a hearing. However,
they participated in the Board’s March 20, 2003 Decision and Certifica-
tion of Representative, which adopted the hearing officer’s findings and
recommendations to overrule the Respondent’s remaining objections,
and certified the Union as representative. They agree that the Respon-
dent has not raised any new matters or special circumstances warrant-
ing a hearing in this proceeding or reconsideration of the decision in the
representation proceeding, and that summary judgment is appropriate
for the reasons indicated herein.
2 We therefore deny the Respondent’s request that the complaint be
dismissed and that it be awarded its costs and fees.
339 NLRB No. 136
HOLT PRODUCTS CO. 1077
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held September 19, 2002, the
Union was certified on March 20, 2003, as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:

All full-time and regular part-time production and
maintenance employees employed by the Employer at
its Madison, Wisconsin location; excluding managerial
employees, clerical employees, guards and supervisors
as defined in the Act.

The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.
B. Refusal to Bargain
By a letters dated March 26 and May 12, 2003, the Un-
ion requested the Respondent to meet and bargain, and,
since on or about March 26, 2003, the Respondent has
failed and refused to do so. We find that the Respondent
has thereby unlawfully refused to bargain in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing on and after March 26, 2003,
to recognize and bargain with the Union as the exclusive
collective-bargaining representative 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 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, Walco International, Inc. d/b/a Holt Prod-
ucts Company, Madison, Wisconsin, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Steelworkers of
America, AFL–CIO–CLC 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-
priate unit on terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement:

All full-time and regular part-time production and
maintenance employees employed by the Employer at
its Madison, Wisconsin location; excluding managerial
employees, clerical employees, guards and supervisors
as defined in the Act.

(b) Within 14 days after service by the Region, post at
its facility in Madison, Wisconsin, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 30,
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 March 26, 2003.
(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.

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 1078
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 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 a 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 United Steel-
workers of America, AFL–CIO–CLC 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 terms and
conditions of employment for our employees in the fol-
lowing bargaining unit:

All full-time and regular part-time production and
maintenance employees employed by us at our Madi-
son, Wisconsin location; excluding managerial em-
ployees, clerical employees, guards and supervisors as
defined in the Act.
WALCO INTERNATIONAL, INC. D/B/A HOLT
PRODUCTS