Kleen Brite Laboratories, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1989

295 N.L.R.B. 939 (N.L.R.B. 1989)

KLEEN BRITE LABORATORIES 939
Kleen Brite Laboratories , Inc. and Rochester Joint
Board, Amalgamated Clothing and Textile
Workers Union , AFL-CIO-CLC. Case 3-CA-
14835
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
June 30, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On March 3, 1989, the General Counsel of the
National Labor Relations Board issued a complaint
alleging that the Respondent has violated Section
8(a)(5) and (1) of the National Labor Relations Act
by refusing the Union's request to bargain follow-
ing the Union's certification in Case 3-RC-9240.
(Official notice is taken of the "record" in the rep-
resentation proceeding as defined in the Board's
Rules and Regulations, Secs. 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Re-
spondent filed its answer admitting in part and de-
nying in part the allegations in the complaint.
On March 31, the General Counsel filed a
Motion for Summary Judgment. On April 7 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 briefs in opposition. The Charging Party filed
a Motion for Summary Judgment in which it seeks
certain remedial relief.
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 answer and briefs 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 representation issues raised by the Respond-
ent were or could have been litigated in the prior
representation proceeding. The Respondent does
not offer to adduce at a hearing any newly discov-
ered and previously unavailable evidence, nor does
it allege any special circumstances that would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find
that the Respondent has not raised any representa-
tion issue that is properly litigable in this unfair
labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Ac-
cordingly, we grant the General Counsel's Motion
for Summary Judgment, and the Charging Party's
to the extent it coincides with that of the General
Counsel.
1. JURISDICTION
The Respondent, a New York State corporation,
manufactures household cleaning products for non-
retail sale and distribution at its facilities in Brock-
port and Rochester, New York, and other facilities
both within and outside New York State, where it
annually processes goods valued in excess of
$50,000 and ships them directly to points outside of
the State of New York. We find that the Respond-
ent is an employer engaged 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 July 8 , 1988, the
Union was certified on January 31 , 1989, as the
collective-bargaining representative of the employ-
ees in the following appropriate unit:
All production, maintenance, shipping and re-
ceiving employees employed by the Respond-
ent at its facilities located in Rochester and
Brockport, New York; excluding all manageri-
al employees, office clerical employees, and
professional employees, guards and supervisors
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 February 8, 1989, the Union has requested
the Respondent to bargain, and, since February 9,
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 February 9, 1989, to
bargain with the Union as the exclusive collective-
bargaining representative of employees in the ap-
propriate 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
295 NLRB No. 99
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 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
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965).
marked "Appendix."2 Copies of the notice, on
forms provided by the Regional Director for
Region 3, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered, 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.
ORDER
The National Labor Relations Board orders that
the Respondent , Kleen Brite Laboratories, Inc.,
Rochester and Brockport , New York, its officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Rochester Joint
Board , Amalgamated Clothing and Textile Work-
ers Union, AFL-CIO-CLC as the exclusive bar-
gaining representative of the employees in the bar-
gaining 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 the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All production , maintenance , shipping and re-
ceiving employees employed by the Respond-
ent at its facilities located in Rochester and
Brockport, New York; excluding all manageri-
al employees, office clerical employees, and
professional employees, guards and supervisors
as defined in the Act.
(b) Post at its facilities in Rochester and Brock-
port , New York, copies of the attached notice
I As noted , the Charging Party requests , in addition to the traditional
remedies for the violations found, an order directing the Respondent to
inform the Union of any action that it proposes to take pursuant to its
current employee disciplinary policy ; to allow employees , at their re-
quest , to represented by a designated union representative at any investi-
gative disciplinary interview ; and to allow the Union to be present at any
complaint adjustment meeting held pursuant to Kleen Brite's extant com-
plaint adjustment procedure. The Charging Party further seeks a retroac-
tive bargaining order We deny the request for these additional remedies
as unwarranted , given the circumstances and the nature of this proceed-
ing, and as beyond the scope of the complaint
' 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 Rochester
Joint Board, Amalgamated Clothing and Textile
Workers Union, 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 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:
All production, maintenance, shipping and re-
ceiving employees employed by the Respond-
ent at its facilities located in Rochester and
Brockport, New York; excluding all manageri-
al employees, office clerical employees, and
professional employees, guards and supervisors
as defined in the Act.
KLEEN BRITE LABORATORIES, INC.