KI (USA) Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1993

310 N.L.R.B. 1233 (N.L.R.B. 1993)

1233
310 NLRB No. 212
KI (USA) CORP.
1 The Respondent defends its refusal to bargain on the basis of an
increase in the size of the unit. The Respondent has not presented
any evidence in support thereof. In any event, this is not a matter
properly raised as a defense to a refusal-to-bargain allegation where
the Respondent is refusing to honor a Board certification. Ray
Brooks v. NLRB, 348 U.S. 96, 103 (1954).
2 The Respondent’s requests for oral argument and for full Board
reconsideration of the underlying representation case decision are de-
nied. The Charging Party filed an opposition to the request for oral
argument.
3 The complaint alleges December 23, 1992, as the date of the
Union’s request to bargain although the Respondent asserts in its an-
swer that the Union’s letter was received on or about January 13
with a letter dated January 12, 1993. We find the Respondent’s as-
sertion raises no matter warranting a hearing.
KI (USA) Corporation and United Automobile,
Aerospace and Agricultural Implement Work-
ers of America, UAW. Case 9–CA–30375
April 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On February 24, 1993, the General Counsel of the
National Labor Relations Board issued a complaint and
notice of hearing alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the National Labor Re-
lations Act by refusing the Union’s request to bargain
following the Union’s certification in Case 9–RC–
15842. (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 Respond-
ent filed its answer admitting in part and denying in
part the allegations in the complaint.
On March 29, 1993, the General Counsel filed a
Motion for Summary Judgment and Memorandum in
Support of Motion for Summary Judgment. On March
31, 1993, 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 Respond-
ent filed a response and the Charging Party filed a
statement in support of the General Counsel’s Motion.
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 the Respondent admits its refusal to
bargain but attacks the validity of the certification on
the basis of its objections to conduct affecting the re-
sults of the election in the representation proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore 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).1
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, has been engaged in
the manufacture and process of metal stampings and
assembly of auto parts at its Berea, Kentucky facility.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its oper-
ations, sold and shipped from its Berea, Kentucky fa-
cility goods valued in excess of $50,000 directly to
points outside the Commonwealth of Kentucky. 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 organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held March 22, 1991, the
Union was certified on December 16, 1992, as the col-
lective-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time production and
maintenance employees employed by [Respond-
ent] at its 501 Mayde Road, Berea, Kentucky lo-
cation, including shipping and receiving and qual-
ity assurance employees, but excluding all office
clerical employees, and all professional employ-
ees, guards and supervisors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since December 23, 1992,3 the Union has requested
the Respondent to bargain and, since January 27, 1993,
the Respondent has refused. We find that this refusal
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 27, 1993, to bar-
gain with the Union as the exclusive collective-bar-
1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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
National 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.’’
gaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 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 un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by law, we shall construe the initial 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 Co., 149 NLRB 1419, 1421 (1964), enfd.
350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, KI (USA) Corporation, Berea, Kentucky,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW, as the exclusive bargaining represent-
ative of the employees in the bargaining unit.
(b) In any like or related manner interfering with,
restraining, 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 employ-
ment, 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 [Respond-
ent] at its 501 Mayde Road, Berea, Kentucky lo-
cation, including shipping and receiving and qual-
ity assurance employees, but excluding all office
clerical employees, and all professional employ-
ees, guards and supervisors as defined in the Act.
(b) Post at its facility in Berea, Kentucky, copies of
the attached notice marked ‘‘Appendix.’’4 Copies of
the notice, on forms provided by the Regional Director
for Region 9, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, 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 Re-
spondent has taken to comply.
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 or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with United Auto-
mobile, Aerospace and Agricultural Implement Work-
ers of America, UAW, 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 bargaining unit:
All full-time and regular part-time production and
maintenance employees employed at our 501
Mayde Road, Berea, Kentucky location, including
shipping and receiving and quality assurance em-
ployees, but excluding all office clerical employ-
ees, and all professional employees, guards and
supervisors as defined in the Act.
KI (USA) CORPORATION