Queensboro Steel Corp.

1 325 NLRB No. 52 1 The Respondent’s request to dismiss the complaint is therefore denied. 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. Queensboro Steel Corporation and Teamsters Local 391, International Brotherhood of Teamsters, AFL–CIO. Case 11–CA–17745 February 6, 1998 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND LIEBMAN Pursuant to a charge and an amended charge filed on November 24, 1997, and December 10, 1997, re- spectively, the General Counsel of the National Labor Relations Board issued a complaint and notice of hear- ing on December 10, 1997, 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– RC–6188. (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 asserting de- fenses. On January 5, 1998, the General Counsel filed a Motion for Summary Judgment and Memorandum in Support. On January 6, 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 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 a defense that the Union was improperly certified because the Board overruled its objections to the election. 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.1 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, a North Carolina corporation with a facility located in Greensboro, North Carolina, where it is engaged in the warehousing and distribution of steel. During the 12-month period preceding issuance of the complaint, which period is representative of all times material herein, the Respondent purchased and received at its Greensboro, North Carolina facility 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 distributed goods and materials valued in excess of $50,000 from its Greensboro, North Carolina facility 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 election held April 11, 1997, the Union was certified on October 14, 1997, as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit: All hourly production employees, including truck drivers, employed by Respondent at its Greens- boro, North Carolina, facility; but excluding all office clerical employees, salespersons, profes- sional employees, guards and supervisors as de- fined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain By letter dated October 17, 1997, the Union has re- quested the Respondent to recognize and bargain col- lectively, and, commencing on or about October 17, 1997, and at all times thereafter, the Respondent has refused. We find that this refusal constitutes an unlaw- ful 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 October 17, 1997, 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, Queensboro Steel Corporation, Greens- boro, North Carolina, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Teamsters Local 391, International Brotherhood of Teamsters, AFL–CIO as the exclusive bargaining representative of the employ- ees 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 hourly production employees, including truck drivers, employed by Respondent at its Greens- boro, North Carolina, facility; but excluding all office clerical employees, salespersons, profes- sional employees, guards and supervisors as de- fined in the Act. (b) Within 14 days after service by the Region, post at its facility in Greensboro, North Carolina, copies of the attached notice marked ‘‘Appendix.’’2 Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Respondent’s authorized 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 17, 1997. (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. February 6, 1998 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll Wilma B. Liebman, 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 391, International Brotherhood of Teamsters, AFL–CIO as the exclusive representative of the em- ployees in the bargaining unit. 3 QUEENSBORO STEEL CORP. 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 hourly production employees, including truck drivers, employed by us at our Greensboro, North Carolina, facility; but excluding all office clerical employees, salespersons, professional employees, guards and supervisors as defined in the Act. QUEENSBORO STEEL CORPORATION