Howard Plating Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1977

230 N.L.R.B. 178 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howard Plating Industries, Inc. and International
Union, United Automobile, Aerospace, and Agri-
cultural Implement Workers of America, UAW.
Case 7-CA-13667
June 13, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Upon a charge filed on January 13, 1977, by
International Union, United Automobile, Aerospace,
and Agricultural Implement Workers of America,
UAW, herein called the Union, and duly served on
Howard Plating Industries, Inc., herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 7, issued a complaint against Respondent on
January 26, 1977, alleging that Respondent had
engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. An order
amending complaint, issued on February 22, 1977,
deleted the name of the Union's Local 417 as a party
to this proceeding. Copies of the charge, complaint,
and order amending complaint were duly served on
the parties herein.
With respect to the unfair labor practices, the
complaint alleges in substance that: on June 24,
1976, a majority of Respondent's employees in the
appropriate unit ' who cast their ballots in the Board
election in Case 7-RC-13626 chose to be represented
by the Union for purposes of collective bargaining
with Respondent; on November 17, 1976, the
Regional Director for Region 7 issued his Report and
Recommendation on Objections in which he recom-
mended overruling Respondent's objections in their
entirety and certifying the Union as the exclusive
collective-bargaining representative for the appropri-
ate unit; on November 29, 1976, the Union sent
Respondent a letter requesting the initiation of
collective-bargaining negotiations; on December 8,
1976, Respondent notified the Union, in writing, that
it would not bargain with it at that time; since
December 8, 1976, Respondent has continued to
refrain from bargaining with the Union; and, by the
aforesaid conduct, Respondent has violated Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
Respondent filed an answer to the complaint on
liThe appropriate unit comprises:
All production and maintenance employees, including shipping and
receiving employees, and laboratory employees employed by the
Respondent at its facility located at 32565 Dequindre Road, Madison
230 NLRB No. 19
February 8, 1977, wherein it admits the aforemen-
tioned chronology of events but denies that it has
violated the Act by refusing to bargain with the
Union pending final determination by the Board of
its timely filed exceptions to the Regional Director's
report in Case 7-RC-13626.
On March 7, 1977, the General Counsel filed
directly with the Board a motion to transfer and
continue the proceedings before the Board and a
Motion for Summary Judgment. On March 16, 1977,
the Board issued an Order transferring the proceed-
ing to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted. The Respondent filed a
statement in opposition to the General Counsel's
motion on April 1, 1977.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
The issue presented herein is whether Respondent's
admitted conduct actually violated its obligation to
bargain with the Union prior to the issuance of
formal Board certification of the results of the
election in Case 7-RC-13626. In the Motion for
Summary Judgment, counsel for the General Coun-
sel contended that, according to "well-established
Board law," Respondent's obligation to bargain was
established as of the date of the representation
election won by the Union and "is not deferred
pending receipt by Respondent of a certification." In
its defense, Respondent: (1) argued that no Board
certification had yet issued in Case 7-RC-13626
imposing a bargaining obligation upon it; (2)
contended that such certification cannot issue in
light of the Union's allegedly objectionable conduct
in the underlying representation proceeding; and (3)
argued that, because its exceptions to the Regional
Director's report and recommendation on its objec-
tions to conduct in the representation election were
pending before the Board when the present unfair
labor practice proceeding were initiated, "any action
processed to that same Board prior to the Board's
deciding the Exceptions would constitute prejudicial
conduct and reversible error and a denial of the
Employer's constitutional guarantee of due process."
We find merit in Respondent's position.
Heights, Michigan, excluding all office clerical employees, confidential
employees, managerial employees, guards and supervisors as defined in
the Act.
178
HOWARD PLATING INDUSTRIES, INC.
Although an employer's obligation to bargain is
established as of the date of an election in which a
majority of unit employees vote for union representa-
tion, the Board has never held that a simple refusal to
initiate collective-bargaining negotiations pending
final Board resolution of timely filed objections to
the election is a per se violation of Section 8(a)(5) and
(1). There must be additional evidence, drawn from
the employer's whole course of conduct, which
proves that the refusal was made as part of a bad-
faith effort by the employer to avoid its bargaining
obligation.
In support of its contention that Respondent
violated Section 8(aX5) and (1) by refusing the
Union's request to commence collective-bargaining
negotiations, the General Counsel relied on language
in Westinghouse Learning Corporation, 211 NLRB 19,
34 (1974), and Laney & Duke Storage Warehouse Co.,
Inc., 151 NLRB 248, 266 (1965). As Respondent
correctly argues in opposition to the Motion for
Summary Judgment, neither of these cases is applica-
ble to the circumstances in the instant proceeding. In
Laney & Duke Storage, both the union's request to
meet for collective-bargaining negotiations and the
respondent's illegal refusal of this request occurred
after issuance of a Board certification. The finding of
a precertification 8(a)(5) violation on which the
General Counsel apparently relies herein relates to a
postelection unilateral change in employee working
conditions, not to the subsequent refusal to begin
contract negotiations. In Westinghouse Learning,
respondent refused the union's request to discuss a
prospective date for an initial collective-bargaining
session on the technical grounds that it had not yet
received certification of the results of the election
held only 2 days earlier. No objections to this
election, won by the union, were pending at the time
of the respondent's refusal. The Board therefore
affirmed the Administrative Law Judge's finding
that, in light of subsequent postcertification events
wherein the respondent persisted in refusing to meet
with the union and engaged in other unfair labor
practices, "this initial action by the Respondent
2 The issuance of an unpublished Decision and Certification in Case 7-
RC-13626 on May 17, 1977, does not affect our disposition of the complaint
herein. As emphasized in the above text, the complaint allegations focus
demonstrated an unwillingness to accept its obliga-
tion to meet in good faith" with the unit employees'
representative.
None of the circumstances controlling the finding
of precertification 8(a)(5) violations in Laney & Duke
Storage or Westinghouse Learning is evident in the
present proceeding. Respondent herein has timely
exercised its legal right to request Board consider-
ation of the Regional Director's report in the
underlying representation election. While awaiting
issuance of a Board decision which might have
relieved it of any bargaining obligation, Respondent
did not violate the Act, absent additional conduct
reflective of bad-faith intentions, by refraining from
the negotiation of a potentially moot collective-
bargaining agreement. 2
Accordingly, we deny the Motion for Summary
Judgment and find that Respondent did not violate
Section 8(a)(5) and (1) of the Act by refusing the
Union's precertification request to bargain. We shall
therefore dismiss the complaint.
CONCLUSIONS OF LAW
1. The Respondent, Howard Plating Industries,
Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Union, United Automobile,
Aerospace, and Agricultural Implement Workers of
America, UAW, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has not violated Section 8(a)(5)
and (1) by refusing to bargain collectively with the
Union pending final determination by the Board of
timely filed exceptions to the Regional Director's
report in Case 7-RC-13626.
ORDER
It is hereby ordered that the complaint against the
Respondent, Howard Plating Industries, Inc., Madi-
son Heights, Michigan, be, and it hereby is, dis-
missed in its entirety.
exclusively on Respondent's conduct prior to the issuance of any Board
certification in the related representation proceeding.
179