Nordyne, Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1996

322 N.L.R.B. 61 (N.L.R.B. 1996)

1
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er­
rors so that corrections can be included in the bound volumes.
Nordyne, Inc. and Teamsters Local Union No. 833,
AFL–CIO, affiliated with the International
Brotherhood of Teamsters. Case 17–CA–18775
October 21, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND FOX
Pursuant to a charge filed on August 16, 1996, the
General Counsel of the National Labor Relations
Board issued a complaint on August 27, 1996, 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 following the Union’s cer­
tification in Case 17–RC–11338. (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 denying in part the allegations in the com­
plaint and submitting affirmative defenses.
On September 19, 1996, the General Counsel filed
a Motion for Summary Judgment and memorandum in
support. On September 20, 1996, the Board issued an
order transferring the proceeding to the Board and a
Notice to Show Cause why the motion should not be
granted. On October 11, 1996, the Respondent filed a
response.1
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 and response the Respondent admits its
refusal to bargain, but attacks the validity of the cer­
tification on the basis of the Board’s unit determina­
tions 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
1 In an attachment to its response, the Respondent requests leave
to amend its answer to add a concluding sentence requesting that the
complaint be dismissed or that a hearing be ordered before an ad­
ministrative law judge. The Respondent’s request to file an amended
answer is granted.
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 Judg-
ment.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times the Respondent, a corporation
with an office and place of business in Boonville, Mis­
souri, has been engaged in the manufacture and dis­
tribution of air conditioners, heat pumps, and base-
board heaters. The Respondent, in conducting its busi­
ness operations described above, annually purchases
and receives at its facility goods valued in excess of
$50,000 directly from points outside the State of Mis­
souri. 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 organi­
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the mail-ballot election conducted from
May 6 through 20, 1996, the Union was certified on
June 3, 1996, as the exclusive collective-bargaining
representative of the employees in the following appro­
priate unit:
All full-time and regular part-time tool and die
employees and tool and die leadpersons employed
by Respondent at its Boonville, Missouri facility,
excluding all office clerical employees, production
employees, maintenance employees, guards, su­
pervisors as defined in the Act, and all other em­
ployees.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since August 6, 1996, the Union has requested the
Respondent to bargain, and since August 12, 1996, the
Respondent has refused. We find that this refusal con­
stitutes 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 August 12, 1996, to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac­
tices affecting commerce within the meaning of Sec-
2 The Respondent’s request to dismiss the complaint or order a
hearing is therefore denied.
322 NLRB No. 61
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 the law, we shall construe the initial pe­
riod of the certification as beginning the date the Re­
spondent 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, Nordyne, Inc., Boonville, Missouri, its of­
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Teamsters Local Union
No. 833, AFL–CIO, affiliated with the International
Brotherhood of Teamsters 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 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 tool and die
employees and tool and die leadpersons employed
by Respondent at its Boonville, Missouri facility,
excluding all office clerical employees, production
employees, maintenance employees, guards, su­
pervisors as defined in the Act, and all other em­
ployees.
(b) Within 14 days after service by the Region, post
at its facility in Boonville, Missouri, copies of the at­
tached notice marked ‘‘Appendix.’’3 Copies of the no­
tice, on forms provided by the Regional Director for
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec­
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Region 17 after being signed by the Respondent’s au­
thorized representative, shall be posted by the Re­
spondent 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 Respondent to ensure that the no­
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro­
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re­
spondent at any time since August 16, 1996.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. October 21, 1996
������������������
William B. Gould IV, Chairman
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Margaret A. Browning, Member
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Sarah M. Fox, Member
(SEAL) 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 or­
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Teamsters
Local Union No. 833, AFL–CIO, affiliated with the
International Brotherhood of Teamsters as the exclu­
sive 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:
NORDYNE, INC. 3
All full-time and regular part-time tool and die
employees and tool and die leadpersons employed
by us at our Boonville, Missouri facility, exclud­
ing all office clerical employees, production em­
ployees, maintenance employees, guards, super-
visors as defined in the Act, and all other employ­
ees.
NORDYNE, INC.