New Jersey Manufacturing Extension Program, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2002

337 N.L.R.B. 1256 (N.L.R.B. 2002)

1256 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
New Jersey Manufacturing Extension Program, Inc.
and Communications Workers of America,
AFL–CIO, Local 1032. Case 22–CA–25097
August 27, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
This is a refusal-to-bargain case in which the Respon­
dent seeks to contest the Union’s certification as bargain­
ing representative in the underlying representation pro­
ceeding. Pursuant to a charge filed on March 26, 2002,
the General Counsel issued the complaint on March 29,
2002, alleging that the Respondent has violated Section
8(a)(5) and (1) of the Act by refusing the Union’s request
to bargain following the Union’s certification in Case
22–RC–12144. (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 deny­
ing in part the allegations in the complaint.
On April 22, 2002, the Ge neral Counsel filed a Motion
for Summary Judgment. On April 29, 2002, 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 Charging Party filed a statement in sup-
port of the General Counsel’s motion. The Respondent
filed an opposition statement and a cross-motion for
summary judgment.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain but con-
tests the validity of the certification on the basis of its
contention, raised and rejected in the representation pro­
ceeding, that the certified unit is inappropriate. Specifi­
cally, the Respondent renews its argument, rejected by the
Regional Director in the representation case, that the field
agents who constitute the unit are managerial employees
and therefore are not employees covered by the Act.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa­
tion proceeding.1 The Respondent does not offer to ad-
1 We note in this regard that the Respondent failed to file a request
for review of the Regional Director’s Decision and Direction of Elec­
tion, and did not file objections to the conduct of the election. In these
circumstances, the Respondent is precluded under Secs. 102.67(f) of
the Board’s Rules and Regulations from raising the issue of the appro­
priateness of the unit in the instant proceeding. See I.O.O.F. Home of
Ohio, Inc., 322 NLRB 921, 922 (1996); Dyncorp/Dynair Services, 322
NLRB 602 fn. 1 (1996), enfd. mem. 121 F.3d 698 (4th Cir. 1997). See
also Ritz-Carlton Hotel Co. v. NLRB, 123 F.3d 760 (3d Cir. 1997),
enfg. 321 NLRB 659 (1996); Premier Living Center, 331 NLRB 123
(2000). Thus, the Respondent failed to exhaust its administrative
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). Accord­
ingly, we grant the Motion for Summary Judgment.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a New Jersey
not-for-profit corporation, with an office and place of
business in Newark, New Jersey, has been engaged in
providing consulting services to manufacturers from its
Newark, New Jersey facility.
During the 12-month period preceding issuance of the
complaint, the Respondent, in conducting its business
operations, purchased and received at its Newark, New
Jersey facility goods and supplies valued in excess of
$50,000 directly from suppliers located outside the State
of New Jersey.
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.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held January 2, 2002, the Union
was certified on January 16, 2002, as the exclusive col­
lective-bargaining representative of the employees in the
following appropriate unit:
All full and regular part-time Field Agents employed
by the Employer from its Newark, New Jersey location,
excluding all other employees, guards and supervisors
as defined in the Act.3
remedies by not requesting Board consideration of the Regional Direc­
tor’s findings. Accordingly, we find no merit in the Respondent’s
contention that its failure to file a request for review or objections did
not waive its right to challenge the appropriateness of the unit in the
instant proceeding because the issue of whether the unit employees are
managerial involves a jurisdictional question that may be raised at any
point in the administrative proceedings. In any event, the Respondent
has not raised any new issues in this “technical” 8(a)(5) proceeding
warranting a hearing or a reconsideration of the findings in the repre­
sentation case.
2 The Respondent’s cross-motion for summary judgment is therefore
denied.
3 The unit description set forth in the complaint contained minor er­
rors that did not precisely describe the certified unit.
337 NLRB No. 185
NEW JERSEY MFG. EXTENSION PROGRAM, INC. 1257
The Union continues to be the exclusive representative un­
der Section 9(a) of the Act.
B. Refusal to Bargain
About February 1, 2002, the Union, by letter, re-
quested the Respondent to bargain, and, since about
March 5, 2002, the Respondent has failed and refused.
We find that this failure and refusal constitutes an unlaw­
ful refusal 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 5, 2002, to
bargain with the Union as the exclusive collective-
bargaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac­
tices 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, New Jersey Manufacturing Extension Pro-
gram, Inc., Newark, New Jersey, its officers, agents, suc­
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Communications Work­
ers of America, AFL–CIO, Local 1032 as the exclusive
bargaining representative of the employees in the bar-
gaining 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 exclu­
sive representative of the employees in the following
appropriate unit on terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement:
All full and regular part-time Field Agents employed
by the Employer from its Newark, New Jersey location,
excluding all other employees, guards and supervisors
as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Newark, New Jersey, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 22,
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 5, 2002.
(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.
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 any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene­
fit and protection
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 Na­
tional Labor Relat ions 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.”
1258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain with Communications
Workers of America, AFL–CIO, Local 1032 as the ex­
clusive 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 exe rcise 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 bar-
gaining unit:
All full and regular part-time Field Agents employed
by us from our Newark, New Jersey location, exclud­
ing all other employees, guards and supervisors as de-
fined in the Act.
NEW JERSEY MANUFACT URING EXTENSION
PROGRAM, INC.