Nordyne, 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. 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 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Margaret A. Browning, Member llllllllllllllllll 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.