Marmara, Inc.

1 325 NLRB No. 73 1 In its answer, the Respondent states that it is engaged in the busi- ness of international freight forwarding services, and denies the fore- going description set forth in the complaint to the extent it states otherwise. However, the Respondent stipulated in the representation proceeding to the description of its business set forth in the com- plaint. 2 Although the Respondent denies the appropriateness of the unit in its answer to the complaint, it stipulated to that unit in the rep- resentation proceeding. Accordingly, it is precluded from litigating the appropriateness of the unit in the instant refusal-to-bargain pro- ceeding. See Wintz Distribution Co., 317 NLRB 284 (1995). 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. Marmara, Inc. and Teamsters Local Union 408, International Brotherhood of Teamsters, AFL– CIO. Case 22–CA–22430 March 19, 1998 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND BRAME Pursuant to a charge filed on December 12, 1997, the General Counsel of the National Labor Relations Board issued a complaint on January 14, 1998, alleg- ing that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refus- ing the Union’s request to bargain following the Union’s certification in Case 22–RC–11397. (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regu- lations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an an- swer admitting in part and denying in part the allega- tions in the complaint. On February 17, 1998, the General Counsel filed a Motion for Summary Judgment. On February 19, 1998, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the mo- tion should not be granted. On February 20 and March 6, 1998, the Respondent filed responses to the motion and notice to show cause. 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 responses the Respondent admits its refusal to bargain, but attacks the validity of the certification on the basis of the Board’s disposition of certain challenged ballots in the representation pro- ceeding. 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 New Jersey corporation, with an office and place of business in Carteret, New Jersey, has been engaged in the sale and provision of cargo transportation services.1 During the 12-month period ending May 15, 1997, the Respond- ent, in conducting its business operations described above, derived gross revenue in excess of $50,000 from the sale and provision of its services directly to customers located outside the State of New Jersey. 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 organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held June 13, 1997, the Union was certified on November 6, 1997, as the ex- clusive collective-bargaining representative of the em- ployees in the following appropriate unit:2 All full-time and regular part-time warehouse em- ployees, forklift operators and office clerical em- ployees employed by the Employer at its Carteret, New Jersey facility, but excluding all sales em- ployees, managerial employees, guards and super- visors 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 December 11, 1997, the Respondent has re- fused to recognize and bargain with the Union as the exclusive bargaining representative of the unit. 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 December 11, 1997, to bar- gain with the Union as the exclusive collective-bar- 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 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.’’ gaining representative of employees in the appropriate 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, Marmara, Inc., Carteret, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Teamsters Local Union 408, International Brotherhood of Teamsters, AFL– CIO, 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 warehouse em- ployees, forklift operators and office clerical em- ployees employed by the Employer at its Carteret, New Jersey facility, but excluding all sales em- ployees, managerial employees, guards and super- visors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Carteret, New Jersey, copies of the at- tached notice marked ‘‘Appendix.’’3 Copies of the no- tice, on forms provided by the Regional Director for Region 22 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 December 11, 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. March 19, 1998 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, 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 Teamsters Local Union 408, International Brotherhood of Team- sters, AFL–CIO, 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. 3 MARMARA, INC. 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 full-time and regular part-time warehouse em- ployees, forklift operators and office clerical em- ployees employed by us at our Carteret, New Jer- sey facility, but excluding all sales employees, managerial employees, guards and supervisors as defined in the Act. MARMARA, INC.