North American Enclosures, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 2005

344 N.L.R.B. 156 (N.L.R.B. 2005)

344 NLRB No. 156
North American Enclosures, Inc. and Local 348-S,
United Food and Commercial Workers Union,
AFL–CIO. Case 29–CA–26679
July 29, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on December 13, 2004,1
the General Counsel issued the complaint on February
23, 2005, alleging that the Respondent has violated Sec-
tion 8(a)(1) and (5) of the Act by refusing the Union’s
request to bargain following the Union’s certification in
Case 29–RC–10007. (Official notice is taken of the “re-
cord” 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 June 29, 2005, the Acting General Counsel filed a
Motion for Summary Judgment. On July 1, 2005, 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 did not file a
response.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tends that the Union’s certification is invalid because the
Board erred in overruling its objections to the election in
the representation proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
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-

1 The Respondent’s answer “denies knowledge or information suf-
ficient to form a belief as to the truth of the allegations” concerning the
filing and service of the charge. The Acting General Counsel, however,
has attached as exhibits to his motion a copy of the charge and affidavit
of service of the charge. The Respondent has not challenged the au-
thenticity of these documents. Accordingly, it is clear that the charge
was filed and served as alleged, and we find that the Respondent’s
denials in this regard do not raise any issue of fact warranting a hearing.
ingly, we grant the Acting General Counsel’s 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 domestic cor-
poration with its principal office and place of business
located at 65 Jetson Lane, Central Islip, New York, and
other facilities located at 85 Jetson Lane and 973 Motor
Parkway, Central Islip, New York, has been engaged in
the manufacture, assembly, and wholesale distribution of
picture frames and framed art.
Annually, in the course and conduct of its operations,
the Respondent purchases and receives at its Central Islip
facilities goods, supplies, and materials valued in excess
of $50,000 directly from points located outside the State
of New York.
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 Local 348-S, United Food and
Commercial Workers Union, AFL–CIO (the Union) is a
labor organization within the meaning of Section 2(5) of
the Act.3
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held April 24, 2003, the Union
was certified on October 27, 2004, as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part-time production
and maintenance, shipping and receiving, plant
clerical employees, and drivers employed by the Re-

2 The Respondent’s request that the complaint be dismissed is there-
fore denied.
Chairman Battista did not participate in the Board’s March 17, 2004
Decision and Order Directing Hearing in the underlying representation
proceeding, and Member Schaumber did not participate in the Board’s
October 27, 2004 Decision and Certification of Representative in the
representation proceeding. They agree, however, that the Respondent
has not raised any new matters or special circumstances warranting a
hearing in this proceeding or reconsideration of the decisions and or-
ders in the representation proceeding, and that summary judgment is
therefore appropriate.
3 In par. 5 of its answer, the Respondent denies sufficient knowledge
or information regarding the Union’s status as a labor organization
within the meaning of Sec. 2(5) of the Act. However, in the underlying
representation proceeding, the Respondent stipulated that the Union is a
labor organization within the meaning of the Act. Accordingly, we find
that the Respondent’s answer in this regard does not raise any issue
warranting a hearing in this proceeding. See, e.g., Spruce Co., 321
NLRB 919 fn. 2 (1996), and cases cited there. In light of this, we find
it unnecessary to pass on the Acting General Counsel’s request that we
strike par. 5 of the Respondent’s answer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
spondent at its premises located at 65 Jetson Lane,
85 Jetson Lane, and 973 Motor Parkway, Central Is-
lip, New York, but excluding all office clerical em-
ployees, managerial employees, guards and supervi-
sors as defined in Section 2(11) of the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
On or about November 1, 2004, the Union, by letter,
requested from the Respondent a date, time, and location
to commence bargaining for an initial collective-
bargaining agreement. On or about November 15, 2004,
the Union, by letter, repeated its request that the Respon-
dent contact the Union and make arrangements to com-
mence bargaining for an initial collective-bargaining
agreement. Since about November 1, 2004, the Respon-
dent has failed and refused to respond to the Union’s
requests to bargain, and has failed and refused to meet
with the Union and commence negotiations toward an
initial collective-bargaining agreement. We find that this
failure and refusal constitutes an unlawful refusal to bar-
gain in violation of Section 8(a)(1) and (5) of the Act.
CONCLUSION OF LAW
By failing and refusing since November 1, 2004, 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)(1) and (5) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(1) and (5) 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 law, we shall construe the initial period of the certifi-
cation 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, North American Enclosures, Inc., Central
Islip, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with Local 348-S, United
Food and Commercial Workers Union, AFL–CIO, as the
exclusive bargaining representative of the employees in
the bargaining 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-time and regular part-time production
and maintenance, shipping and receiving, plant
clerical employees, and drivers employed by the Re-
spondent at its premises located at 65 Jetson Lane,
85 Jetson Lane, and 973 Motor Parkway, Central Is-
lip, New York, but excluding all office clerical em-
ployees, managerial employees, guards, and supervi-
sors as defined in Section 2(11) of the Act.
(b) Within 14 days after service by the Region, post at
its facilities in Central Islip, New York, copies of the
attached notice marked “Appendix.”4 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 29, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
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 notices are not al-
tered, 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 facili-
ties involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since November 1,
2004.
(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.

4If 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 Relations 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.”
NORTH AMERICAN ENCLOSURES 3
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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain with Local 348-S,
United Food and Commercial Workers Union, AFL–
CIO, as the exclusive bargaining 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 bar-
gaining unit:
All full-time and regular part-time production
and maintenance, shipping and receiving, plant
clerical employees, and drivers employed by us at
our premises located at 65 Jetson Lane, 85 Jetson
Lane, and 973 Motor Parkway, Central Islip, New
York, but excluding all office clerical employees,
managerial employees, guards, and supervisors as
defined in Section 2(11) of the Act.
NORTH AMERICAN ENCLOSURES, INC.