Nordol Div. of L.T.A.

1 325 NLRB No. 160 1 Although the unit set forth in the complaint reads somewhat dif- ferently, we conclude, in the absence of any explanation to the con- trary, that this was inadvertent. Accordingly, the unit is set forth here as set forth in the Board’s Certification. 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. Nordol, Division of the L.T.A Group, Inc. and Philadelphia-South Jersey District Council, UNITE, AFL–-CIO. Case 4–CA–26992–1 June 8, 1998 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS LIEBMAN AND BRAME Pursuant to a charge filed on March 31, 1998, the General Counsel of the National Labor Relations Board issued a Complaint and Notice of Hearing on April 3, 1998, alleging that the Respondent has vio- lated Section 8(a)(5) and (1) of the National Labor Re- lations Act by refusing the Union’s request to bargain following the Union’s certification in Case 4–RC– 19207. (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, with affirmative defenses, admit- ting in part and denying in part the allegations in the complaint. On April 22, 1998, the Acting General Counsel filed a Motion for Summary Judgment and Memorandum in Support. On April 24, 1998, 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 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 the Respondent admits its refusal to recognize and bargain, but attacks the validity of the certification on the basis of its objections to conduct alleged to have affected the results of the election in the representation proceeding. The Respondent asserts as affirmative defenses that the Board’s improper cer- tification of the Union affected the results of the elec- tion in that a number of voters were denied the oppor- tunity to vote, destroyed the laboratory conditions nec- essary to conduct a free and fair election, gave the ap- pearance of bias and unfairly prejudiced the Employer, and that the Union and/or union supporters violated the no electioneering zone or engaged voters in prolonged discussions while they waited to vote or were going to vote. 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 At all material times, the Respondent, a Delaware corporation with a facility in Bellmawr, New Jersey (herein called the Distribution Center), has been en- gaged in the business of warehousing and trucking. During calendar year 1997, the Respondent, in con- ducting its business operations, purchased and received goods valued in excess of $50,000 directly from points 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 organi- zation within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held October 3, 1997, the Union was certified on February 11, 1998, as the ex- clusive collective-bargaining representative of the em- ployees in the following appropriate unit: All regular full-time and part-time warehouse em- ployees employed by the Employer at its 31 Hell- er Road, Bellmawr, New Jersey facility. Ex- cluded: All other employees, truck drivers, cleri- cal employees, guards, watchmen and supervisors as defined in the Act.1 The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain On or about March 5, 1998, the Union, by letter, re- quested that the Respondent recognize and bargain, and, on or about March 23, 1998, the Respondent, by letter, 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. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ CONCLUSION OF LAW By refusing on and after March 23, 1998, to recog- nize and bargain with the Union as the exclusive col- lective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices 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 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, Nordol, Division of the L.T.A. Group, Inc., Bellmawr, New Jersey, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Philadelphia-South Jer- sey District Council, UNITE, AFL–CIO, as the exclu- sive 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 regular full-time and part-time warehouse em- ployees employed by Respondent by the Em- ployer at its 31 Heller Road, Bellmawr, New Jer- sey facility. Excluded: All other employees, truck drivers, clerical employees, guards, watchmen and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Bellmawr, New Jersey, copies of the attached notice marked ‘‘Appendix.’’2 Copies of the notice, on forms provided by the Regional Director for Region 4, 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 March 23, 1998. (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. June 8, 1998 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Wilma B. Liebman, Member llllllllllllllllll J. Robert Brame III, 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 Philadelphia- South Jersey District Council, UNITE, AFL–CIO, as the exclusive representative of the employees in the bargaining unit. 3 NORDOL 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: All regular full-time and part-time warehouse em- ployees employed by us at our 31 Heller Road, Bellmawr, New Jersey facility. Excluded: All other employees, truck drivers, clerical employees, guards, watchmen and supervisors as defined in the Act. NORDOL, DIVISION OF THE L.T.A. GROUP, INC.