Bandag, Inc.

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. Bandag, Inc. and Local 922, United Steelworkers of America, AFL–CIO, CLC. Case 11–CA–17210 December 6, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed by Local 922, United Steelworkers of America, AFL–CIO, CLC (the Union or Local 922) on October 1, 1996, the General Counsel of the National Labor Relations Board issued a com­ plaint on October 9, 1996, alleging that the Respond­ ent 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 certification in Case 11– RD–563. (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 an answer admitting in part and denying in part the allegations in the complaint, and submitting an affirmative defense. On November 4, 1996, the General Counsel filed a Motion for Summary Judgment and memorandum in support. On November 6, 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 November 20, 1996, the Respondent filed a response. 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 certifi­ cation based on 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 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). Accordingly, we grant the Motion for Summary Judg­ ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent is now, and has been at all times material herein, an Iowa corporation engaged in the operation of a tire retreading manufacturing facility lo­ cated in Oxford, North Carolina, and a related ware- house facility located in Louisburg, North Carolina. During the 12-month period preceding the issuance of the complaint, the Respondent purchased and received at its Oxford and Louisburg, North Carolina facilities goods and materials valued in excess of $50,000 di­ rectly from points outside the State of North Carolina. During the same period, the Respondent sold and shipped from its Oxford and Louisburg, North Carolina facilities products valued in excess of $50,000 directly to points outside the State of North Carolina. We find that the Respondent 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 organiza­ tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the decertification election held March 28, 1996, the Union was certified on August 27, 1996, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All production and maintenance associates, in­ cluding process technicians employed by the Em­ ployer at its Oxford, North Carolina, and Louisburg, North Carolina, facilities; excluding office clerical associates, professional associates, and 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 about July 1, 1995,1 the Union has requested the Respondent to bargain, and, since about September 20, 1996, 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 September 20, 1996, to bargain with the Union as the exclusive collective-bar- gaining representative of employees in the appropriate 1 About July 1, 1995, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL–CIO merged with United Steelworkers of America, AFL–CIO, CLC, and Local 922 became the exclusive col­ lective-bargaining representative of the unit. 322 NLRB No. 112 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 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, Bandag, Inc., Oxford and Louisburg, North Carolina, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with Local 922, United Steelworkers of America, AFL–CIO, CLC, as the ex­ clusive 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 production and maintenance associates, in­ cluding process technicians employed by the Em­ ployer at its Oxford, North Carolina, and Louisburg, North Carolina, facilities; excluding office clerical associates, professional associates, and guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Oxford, North Carolina, copies of the attached notice marked ‘‘Appendix.’’2 Copies of the 2 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 notice, on forms provided by the Regional Director for Region 11 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 October 1, 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. December 6, 1996 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., 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 Local 922, United Steelworkers of America, 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 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ BANDAG, INC. 3 terms and conditions of employment for our employees Louisburg, North Carolina, facilities; excluding in the bargaining unit: office clerical associates, professional associates, All production and maintenance associates, in- and guards and supervisors as defined in the Act. cluding process technicians employed by the Em­ ployer at its Oxford, North Carolina, and BANDAG, INC.