Arch Aluminum & Glass, L.C.

327 NLRB No. 45 1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive 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. Arch Aluminum and Glass, L.C. and United Paper- Workers International Union, AFL-CIO, CLC. Case 26–CA–18841 November 30, 1998 DECISION AND ORDER BY MEMBERS LIEBMAN, HURTGEN, AND BRAME Pursuant to a charge filed on September 23, 1998, the Acting General Counsel of the National Labor Relations Board issued a complaint on October 6, 1998, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Un- ion’s request to bargain following the Union’s certifica- tion in Case 26–RC–8012. (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 an answer admitting in part and deny- ing in part the allegations in the complaint. On October 29, 1998, the General Counsel filed a Mo- tion for Summary Judgment. On November 3, 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. On November 17, 1998, the Re- spondent 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 and response the Respondent admits its refusal to bargain, but attacks the validity of the certifi- cation 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 representa- tion proceeding.1 The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances 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 un- fair labor practice proceeding. See Pittsburgh Plate 1 We note in this regard that the Respondent failed to file timely ex- ceptions to the Regional Director’s report recommending that the Re- spondent’s objections be overruled. See the Board’s August 3, 1998 Decision and Certification of Representative (unpublished). In these circumstances, the Respondent is precluded from raising the same issues in the instant proceeding. See Dyncorp/Dynair Services, 322 NLRB 602 (1996); and Alvin J. Bart & Co., 198 NLRB 1070 (1972). See also Ritz-Carlton Hotel Co. v. NLRB, 123 F.3d 760 (3d Cir. 1997), enfg. 321 NLRB 659 (1996). Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, 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 corporation, with an office and place of business in Memphis, Ten- nessee, has been engaged in the business of cutting glass. During the 12-month period ending August 31, 1998, the Respondent, in conducting its business operations de- scribed above, sold and shipped from its facility goods valued in excess of $50,000 directly to points located outside the State of Tennessee, and purchased and re- ceived at the facility goods valued in excess of $50,000 directly from points located outside the State of Tennes- see. 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 United Paperworkers International Union, AFL–CIO, CLC 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 18, 1998, the Union was certified on August 3, 1998, as the exclusive collec- tive-bargaining representative of the employees in the following appropriate unit: All production and maintenance employees and truck drivers, employed by Arch Aluminum and Glass, L.C. at its Memphis, Tennessee facility, excluding all office clerical employees, professional employees, guards and supervisors as defined by the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain About August 20, and September 14 and 25, 1998, the Union requested the Respondent to bargain, and since about September 25, 1998, 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 September 25, 1998, to bar- gain with the Union as the exclusive collective- bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac- tices 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 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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 cer- tification 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, Arch Aluminum and Glass, L.C., Memphis, Tennessee, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Paperworkers In- ternational Union, AFL–CIO, CLC as the exclusive bar- gaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, 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 appro- priate 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 and truck drivers, employed by Arch Aluminum and Glass, L.C. at its Memphis, Tennessee facility, excluding all office clerical employees, professional employees, guards and supervisors as defined by the Act. (b) Within 14 days after service by the Region, post at its facility in Memphis, Tennessee, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 26 after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since September 25, 1998. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. November 30, 1998 Wilma B. Liebman, Member Peter J. Hurtgen, Member 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with United Paper- workers International Union, AFL–CIO, CLC as the ex- clusive 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 terms and conditions of employment for our employees in the bar- gaining unit: All production and maintenance employees and truck drivers, employed by Arch Aluminum and Glass, L.C. at its Memphis, Tennessee facility, excluding all office clerical employees, professional employees, guards and supervisors as defined by the Act. ARCH ALUMINUM AND GLASS, L.C.