Howard Plating Industries, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Howard Plating Industries, Inc. and International Union, United Automobile, Aerospace, and Agri- cultural Implement Workers of America, UAW. Case 7-CA-13667 June 13, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge filed on January 13, 1977, by International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, UAW, herein called the Union, and duly served on Howard Plating Industries, Inc., herein called Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint against Respondent on January 26, 1977, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. An order amending complaint, issued on February 22, 1977, deleted the name of the Union's Local 417 as a party to this proceeding. Copies of the charge, complaint, and order amending complaint were duly served on the parties herein. With respect to the unfair labor practices, the complaint alleges in substance that: on June 24, 1976, a majority of Respondent's employees in the appropriate unit ' who cast their ballots in the Board election in Case 7-RC-13626 chose to be represented by the Union for purposes of collective bargaining with Respondent; on November 17, 1976, the Regional Director for Region 7 issued his Report and Recommendation on Objections in which he recom- mended overruling Respondent's objections in their entirety and certifying the Union as the exclusive collective-bargaining representative for the appropri- ate unit; on November 29, 1976, the Union sent Respondent a letter requesting the initiation of collective-bargaining negotiations; on December 8, 1976, Respondent notified the Union, in writing, that it would not bargain with it at that time; since December 8, 1976, Respondent has continued to refrain from bargaining with the Union; and, by the aforesaid conduct, Respondent has violated Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. Respondent filed an answer to the complaint on liThe appropriate unit comprises: All production and maintenance employees, including shipping and receiving employees, and laboratory employees employed by the Respondent at its facility located at 32565 Dequindre Road, Madison 230 NLRB No. 19 February 8, 1977, wherein it admits the aforemen- tioned chronology of events but denies that it has violated the Act by refusing to bargain with the Union pending final determination by the Board of its timely filed exceptions to the Regional Director's report in Case 7-RC-13626. On March 7, 1977, the General Counsel filed directly with the Board a motion to transfer and continue the proceedings before the Board and a Motion for Summary Judgment. On March 16, 1977, the Board issued an Order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judg- ment should not be granted. The Respondent filed a statement in opposition to the General Counsel's motion on April 1, 1977. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment The issue presented herein is whether Respondent's admitted conduct actually violated its obligation to bargain with the Union prior to the issuance of formal Board certification of the results of the election in Case 7-RC-13626. In the Motion for Summary Judgment, counsel for the General Coun- sel contended that, according to "well-established Board law," Respondent's obligation to bargain was established as of the date of the representation election won by the Union and "is not deferred pending receipt by Respondent of a certification." In its defense, Respondent: (1) argued that no Board certification had yet issued in Case 7-RC-13626 imposing a bargaining obligation upon it; (2) contended that such certification cannot issue in light of the Union's allegedly objectionable conduct in the underlying representation proceeding; and (3) argued that, because its exceptions to the Regional Director's report and recommendation on its objec- tions to conduct in the representation election were pending before the Board when the present unfair labor practice proceeding were initiated, "any action processed to that same Board prior to the Board's deciding the Exceptions would constitute prejudicial conduct and reversible error and a denial of the Employer's constitutional guarantee of due process." We find merit in Respondent's position. Heights, Michigan, excluding all office clerical employees, confidential employees, managerial employees, guards and supervisors as defined in the Act. 178 HOWARD PLATING INDUSTRIES, INC. Although an employer's obligation to bargain is established as of the date of an election in which a majority of unit employees vote for union representa- tion, the Board has never held that a simple refusal to initiate collective-bargaining negotiations pending final Board resolution of timely filed objections to the election is a per se violation of Section 8(a)(5) and (1). There must be additional evidence, drawn from the employer's whole course of conduct, which proves that the refusal was made as part of a bad- faith effort by the employer to avoid its bargaining obligation. In support of its contention that Respondent violated Section 8(aX5) and (1) by refusing the Union's request to commence collective-bargaining negotiations, the General Counsel relied on language in Westinghouse Learning Corporation, 211 NLRB 19, 34 (1974), and Laney & Duke Storage Warehouse Co., Inc., 151 NLRB 248, 266 (1965). As Respondent correctly argues in opposition to the Motion for Summary Judgment, neither of these cases is applica- ble to the circumstances in the instant proceeding. In Laney & Duke Storage, both the union's request to meet for collective-bargaining negotiations and the respondent's illegal refusal of this request occurred after issuance of a Board certification. The finding of a precertification 8(a)(5) violation on which the General Counsel apparently relies herein relates to a postelection unilateral change in employee working conditions, not to the subsequent refusal to begin contract negotiations. In Westinghouse Learning, respondent refused the union's request to discuss a prospective date for an initial collective-bargaining session on the technical grounds that it had not yet received certification of the results of the election held only 2 days earlier. No objections to this election, won by the union, were pending at the time of the respondent's refusal. The Board therefore affirmed the Administrative Law Judge's finding that, in light of subsequent postcertification events wherein the respondent persisted in refusing to meet with the union and engaged in other unfair labor practices, "this initial action by the Respondent 2 The issuance of an unpublished Decision and Certification in Case 7- RC-13626 on May 17, 1977, does not affect our disposition of the complaint herein. As emphasized in the above text, the complaint allegations focus demonstrated an unwillingness to accept its obliga- tion to meet in good faith" with the unit employees' representative. None of the circumstances controlling the finding of precertification 8(a)(5) violations in Laney & Duke Storage or Westinghouse Learning is evident in the present proceeding. Respondent herein has timely exercised its legal right to request Board consider- ation of the Regional Director's report in the underlying representation election. While awaiting issuance of a Board decision which might have relieved it of any bargaining obligation, Respondent did not violate the Act, absent additional conduct reflective of bad-faith intentions, by refraining from the negotiation of a potentially moot collective- bargaining agreement. 2 Accordingly, we deny the Motion for Summary Judgment and find that Respondent did not violate Section 8(a)(5) and (1) of the Act by refusing the Union's precertification request to bargain. We shall therefore dismiss the complaint. CONCLUSIONS OF LAW 1. The Respondent, Howard Plating Industries, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America, UAW, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not violated Section 8(a)(5) and (1) by refusing to bargain collectively with the Union pending final determination by the Board of timely filed exceptions to the Regional Director's report in Case 7-RC-13626. ORDER It is hereby ordered that the complaint against the Respondent, Howard Plating Industries, Inc., Madi- son Heights, Michigan, be, and it hereby is, dis- missed in its entirety. exclusively on Respondent's conduct prior to the issuance of any Board certification in the related representation proceeding. 179