Magnode Corp

AWB Metals Division of Magnode Corporation and United Automobile, Aerospace and Agricultural Implement Workers of America, UAW. Case 25-CA-21845 June 24, 1992 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH On April 3, 1992, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing 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 following the Union's certification in Case 25-RC-9033. (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 its answer admitting in part and denying in part the allegations in the complaint. On May 12, 1992, the General Counsel filed a Motion for Summary Judgment. On May 14, 1992, 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 and the Charging Party each filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a threemember panel. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bargain and to furnish information that is relevant and necessary to the Union's role as bargaining representative, but attacks the validity of the certification on the basis of its objections to the election in the representation proceeding. 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). There are no factual issues regarding the Union's request for information because the Respondent admitted that it refused to furnish the information.¹ Accordingly, we grant the Motion for Summary Judgment.² On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, an Ohio corporation, maintains its principal office at Trenton, Ohio, and places of business at Indianapolis, Indiana, where it engages in the fabrication of metal products. During the 12 months preceding issuance of the complaint, the Respondent purchased and received at its Indianapolis, Indiana facilities, products, goods, and materials valued in excess of $50,000 directly from points outside the State of Indiana. 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 7, 1991, the Union was certified on January 22, 1992,3 as the collective-bargaining representative of the employees in the following appropriate unit: All production and maintenance employees, including warehouse employees, truck drivers, and group leaders, employed at the Employer's Indianapolis, Indiana facilities located at 4151 W. Washington Street and 90 S. Tibbs; but excluding all office-clerical and professional employees, all draftsmen, all guards and watchmen, all temporary employees, and all supervisors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. 1 Although the Respondent denied that the information is necessary and relevant to the Union's performance of its duties, the description of the information sought on its face relates directly to the wages, hours, and terms and conditions of employment of the unit employees and we so find. In any event, the Respondent did not contest relevance in its response to the show cause order. 2 We find it unnecessary to pass on the General Counsel's motion to strike portions of the Respondent's answer. 3 On January 22, 1992, the Board, Member Raudabaugh dissenting, issued a decision and certification of representative in which it adopted the Regional Director's report overruling the Respondent's election objections and certified the Union, 306 NLRB No. 18 (Jan. 22, 1992). 307 NLRB No. 146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. Refusal to Bargain Since about February 18, 1992, the Union has requested the Respondent to bargain and to furnish information, and, since about February 20, 1992, 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 February 20, 1992, to bargain with the Union as the exclusive collectivebargaining representative of employees in the appropriate unit and to furnish the Union requested information, 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. We also shall order the Respondent to furnish the Union the information requested. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by 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); 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, AWB Metals Division of Magnode Corporation, Indianapolis, Indiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, as the exclusive bargaining representative of the employees in the bargaining unit, and refusing to furnish the Union information that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees. (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 production and maintenance employees, including warehouse employees, truck drivers, and group leaders, employed at the Employer's Indianapolis, Indiana facilities located at 4151 W. Washington Street and 90 S. Tibbs; but excluding all office-clerical and professional employees, all draftsmen, all guards and watchmen, all temporary employees, and all supervisors as defined in the Act. (b) On request, furnish the Union information that is relevant and necessary to its role as the exclusive representative of the unit employees. (c) Post at its facilities in Indianapolis, Indiana, copies of the attached notice marked "Appendix." Copies of the notice, on forms provided by the Regional Director for Region 25 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. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. "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." 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 United Automobile, Aerospace and Agricultural Implement Workers of America, UAW as the exclusive representative of the employees in the bargaining unit, and WE WILL NOT refuse to furnish the Union MAGNODE CORP. information that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees. 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 production and maintenance employees, including warehouse employees, truck drivers, and group leaders, employed at the Employer's Indianapolis, Indiana facilities located at 4151 W. Washington Street and 90 S. Tibbs; but excluding all office-clerical and professional employees, all draftsmen, all guards and watchmen, all temporary employees, and all supervisors as defined in the Act. AWB METALS, DIVISION OF MAG- NODE CORPORATION