Industrial Acoustics Co., Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1989

297 N.L.R.B. 387 (N.L.R.B. 1989)

INDUSTRIAL ACOUSTICS CO 387
Industrial Acoustics Company, Inc. and Sheet Metal
Workers' International Association, Local
Union No. 399, AFL-CIO, CLC. Case 11-CA-
13274
November 21, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On May 11, 1989, the Acting General Counsel of
the National Labor Relations Board issued a com-
plaint alleging that the Respondent has violated
Section 8(a)(5) and (1) of the National Labor Rela-
tions Act by refusing the Union's request to bar-
gain following the Union's certification in Case 11-
RC-5469 (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 its answer, and later, an
amended answer, admitting in part and denying in
part the allegations in the complaint
On August 22, 1989, the General Counsel filed a
Motion for Summary Judgment On August 28,
1989, 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
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 its amended answer the Respondent admits its
refusal to bargain, but attacks the validity of the
certification on the basis of its objections to the
election in the representation proceeding
'All the representation issues raised by the Re-
spondent were or could have been litigated in the
prior representation proceeding The Respondent
does not offer to adduce at a hearing any newly
discovered and previously unavailable evidence,
nor does it allege any special circumstances that
would require the Board to reexamine the decision
made in the representation proceeding 1 We there-
1 In its response to the Notice to Show Cause, the Respondent argues
that the Board s certification of the Union, based as it was on adoption of
the Hearing Officer's report in the representation proceeding below, was
erroneous
Specifically, the Respondent asserts that, contrary to the Hearing Offi-
cer's findings, the Union's soundcar broadcasts prior to the election vio-
lated the rule of Peerless Plywood, 107 NLRB 427 (1953) We find that
this issue was litigated fully in the representation proceeding, in which It
was determined that no Peerless Plywood violation occurred The Re-
spondent offers no grounds for reexamining the issue now
Also in its response and its amended answer, filed September 15, 1989,
the Respondent reasserts one of its original objections to the conduct of
fore find that the Respondent has not 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
Judgment
On the entire record the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent, a South Carolina corporation,
manufactures commercial acoustical soundproofing
material at its facility at Moncks Corner, South
Carolina During the 12 months prior to the filing
of the complaint, the Respondent received goods
and raw materials valued in excess of $50,000 di-
rectly from points outside the State of South Caro-
lina and shipped goods valued in excess of $50,000
directly to points outside the State of South Caroli-
na
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
A The Certification
Following the election held February 18, 1988,
the Union was certified on March 8, 1989, as the
the election, an objection to the Union's alleged picture taking near the
plant gate before the election That objection was among those that the
Regional Director recommended overruling The Respondent did not
except to the recommendation, and did not raise the picture taking allega-
tions again in the representation case In these circumstances, we find
that the issue was litigated below
To support its argument for renewal of this previously litigated objec-
tion, however, the Respondent contends that the Board's decisions in
Pepsi-Cola Bottling Co of Los Angeles, 289 NLRB 736 (1988), and Mike
Yurosek & Son Inc , 292 NLRB 1074 (1989), establish new law sufficiently
pertinent here to constitute a special circumstance requiring reexamina-
tion of the representation case below For this proposition, the Respond
ent relies on Milton College, 260 NLRB 399 (1982) In denying the Gen-
eral Counsel's Motion for Summary Judgment, the Milton College Board
found that the Supreme Court's decision in NLRB v Yeshiva University,
444 U S 672 (1980), which redefined certain faculty jobs as managerial,
"in effect present[ed] an issue not previously litigated" 260 NLRB at
400 In Milton College, the Board found that since Yeshiva issued after the
certification, but before the union requested bargaining, the respondent
could not 'knowledgeably" have waived its Yeshiva-based arguments
about the bargaining unit composition 260 NLRB at 400 In this case, the
Respondent's argument is untimely, as Pepsi-Cola issued during the repre-
sentation proceeding and the Respondent could have argued its applica-
tion long before now Thus, the question of knowledgeable waiver does
not ante here as It did in Milton College
Further, the holdings of Pepsi-Cola and Mike Yurosek are highly fact
specific and do not create a genuine Issue of law that would preclude
summary judgment Unlike the situation in Milton College, therefore,
these two decisions do not constitute, either in their timing or in their
content, the type of substantial change in the law that warrants reconsid-
eration of the decision to certify below
297 NLRB No 56
,, 4
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
collective-bargaining representative of the employ-
ees in the following appropriate unit
All production and maintenance employees
employed at the Employer's Moncks Corner,
South Carolina, facility, excluding all office
clerical employees, quality control employees,
supervisory lead persons, guards, and supervi-
sors as defined in the Act
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act
B Refusal to Bargain
Since March 17, 1989, the Union has requested
the Respondent to bargain, and since April 6, 1989,
the Respondent has refused We find that this re-
fusal constitutes an unlawful refusal to bargain in
violation of Section 8(a)(5) and (1) of the Act
CONCLUSIONS OF LAW
By refusing on and after April 6, 1989, to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appro-
priate 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 that understanding in a signed agreement
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial period of the certification 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
Go, 149 NLRB 1419, 1421 (1964), enfd 350 F 2d
57 (10th Cm 1965)
ORDER
The National Labor Relations Board orders that
the Respondent, Industrial Acoustics Company,
Inc , Moncks Corners, South Carolina, its officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain with Sheet Metal Work-
ers' International Association, Local Union No
399, AFL-CIO, CLC 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 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 employees in the follow-
ing appropriate unit on terms and conditions of em-
ployment and, if an understanding is reached,
embody that understanding in a signed agreement
All production and maintenance employees
employed at the Employer's Moncks Corner,
South Carolina, facility, excluding all office
and clerical employees, quality control em-
ployees, supervisory lead persons, guards, and
supervisors as defined in the Act
(b) Post at its facility in Moncks Corner, South
Carolina, copies of the attached notice marked
"Appendix " 2 Copies of the notice, on forms pro-
vided by the Regional Director for Region 11,
after being signed by the Respondent's authorized
representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days in conspicuous places including
all places where notices to employees are custom-
arily posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material
(c) Notify the Regional Director in writing
within 20 days from the date of this order what
steps the Respondent has taken to comply
2 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 Sheet
Metal Workers' International Association, Local
Union No 399, AFL-CIO, CLC as the exclusive
representative of the employees in the bargaining
unit
INDUSTRIAL ACOUSTICS CO 389
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
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit
,I
All production and maintenance employees
employed at the Employer's Moncks Corner,
South Carolina, facility, excluding all office
clerical employees, quality control employees,
supervisory lead persons, guards, and supervi-
sors as defined in the Act
INDUSTRIAL ACOUSTICS COMPANY, INC