Pannier Corp.

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 errors so that corrections can be included in the bound volumes. Pannier Corp., Graphics Division and District Lodge No. 83, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 6-CA-27675 March 20, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND COHEN Pursuant to a charge filed on November 6, 1995, the General Counsel of the National Labor Relations Board issued an amended complaint and an amendment to the amended complaint on December 7, 1995, and January 16, 1996, respectively, 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 and by failing to respond to the Union's letters requesting bargaining following the Union's certification in Case 6-RC-11126. (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 answers admitting in part and denying in part the allegations in the complaint as amended. On February 13, 1996, the General Counsel filed a Motion for Summary Judgment. On February 15, 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. 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 answers to the amended complaint and the amendment to the amended complaint and in its response the Respondent admits the appropriateness of the unit and that the Union requested bargaining but denies that it refused to bargain and attacks the validity of the certification on the basis of its position in the representation proceeding that the Board should have certified the results of the first election and should not have directed a second election.¹ 1 Although the Respondent denies that it refused to bargain and respond to the Union's requests for bargaining, the General Counsel has submitted with its motion copies of the correspondence between the parties evidencing these facts, and the Respondent has not disputed the authenticity of that correspondence. Accordingly, we find that the Respondent's denials do not raise any issues warranting a All representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding. 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 Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Pennsylvania corporation, with an office and a facility in Gibsonia, Pennsylvania, has been engaged in the manufacture of fiberglass signs. During the 12-month period ending October 31, 1995, the Respondent, in conducting its business operations described above, sold and shipped from its Gibsonia, Pennsylvania facility goods valued in excess of $50,000 directly to points outside the Commonwealth of Pennsylvania. 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 second election held on August 4, 1995, the Union was certified on August 16, 1995, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time production and maintenance employees employed by the Employer at its Gibsonia, Pennsylvania facility but excluding office clerical employees and professional employees, guards and supervisors 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 about August 18, 1995, and continuing to date, the Union has requested the Respondent to barhearing. In view of this ruling, we find it unnecessary to pass on the General Counsel's motion to strike the Respondent's denial of pars. 7 and 8 of the amended complaint, which alleged that the Union was certified and is the exclusive bargaining representative of the unit employees. 320 NLRB No. 116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gain and, since August 18, 1995, the Respondent 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. CONCLUSION OF LAW By refusing on and after August 18, 1995, to bargain with the Union as the exclusive collective-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 Section 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 understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the certification as beginning the date the Respondent 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); and 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, Pannier Corp., Graphics Division, Gibsonia, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with District Lodge No. 83, International Association of Machinists and Aerospace Workers, 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 exclusive representative of the employees in the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time production and maintenance employees employed by the Employer at its Gibsonia, Pennsylvania facility but excluding office clerical employees and professional employees, guards and supervisors as defined in the Act. (b) Post at its facility in Gibsonia, Pennsylvania, copies of the attached notice marked "Appendix." Copies of the notice, on forms provided by the Regional Director for Region 6 after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt 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 notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. Dated, Washington, D.C. March 20, 1996 William B. Gould IV, Chairman Margaret A. Browning, Member Charles I. Cohen, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 2If 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." 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with District Lodge No. 83, International Association of Machinists and Aerospace Workers, 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. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on PANNIER CORP. terms and conditions of employment for our employees in the bargaining unit: All full-time and regular part-time production and maintenance employees employed by us at our Gibsonia, Pennsylvania facility but excluding office clerical employees and professional employees, guards and supervisors as defined in the Act. PANNIER CORP., GRAPHICS DIVISION