Aljoma Lumber, Inc.

327 NLRB No. 1 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. Aljoma Lumber, Inc. and United Brotherhood of Carpenters and Joiners of America, AFL–CIO, Local Union No. 1554. Case 12–CA–19444–2 October 20, 1998 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND BRAME Pursuant to a charge and an amended charge filed on May 4 and July 14, 1998, respectively, the Acting Gen- eral Counsel of the National Labor Relations Board is- sued a complaint on July 16, 1998, alleging that the Re- spondent has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act by refusing the Union's re- quest to bargain following the Union's certification in Case 12–RC–8119. (Official notice is taken of the “rec- ord” 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 and submit- ting affirmative defenses. On September 11, 1998, the Acting General Counsel filed a Motion for Summary Judgment. On September 14, 1998, the Board issued an order transferring the pro- ceeding 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 answer the Respondent admits its refusal to bar- gain, 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 representa- tion proceeding. 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 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 Florida corpo- ration, with an office and place of business located in Medley, Florida, has been engaged in the business of the nonretail sale of lumber. During the 12-month period preceding the issuance of the complaint, the Respondent, in conducting its business operations described above, purchased and received goods and materials valued in excess of $50,000 directly from points located outside the State of Florida. 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 July 25, 1997, the Union was certified on January 30, 1998, as the exclusive col- lective-bargaining representative of the employees in the following appropriate unit:1 All full-time and regularly scheduled part-time drivers, production and maintenance employees employed by Respondent at its 10300 N.W. 121st Way, Medley, Florida facility; but excluding all other classifications including dispatchers, office clerical employees, guards and supervisors as defined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain About February 3, 1998, the Union requested the Re- spondent to bargain, and, since that date, the Respondent has refused. We find that this refusal constitutes an un- lawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after February 3, 1998, 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 affect- ing 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. 1 On February 9, 1998, the Respondent filed a motion for reconsid- eration of the Board's Decision and Certification. By order dated May 20, 1998, the Board denied the Respondent's motion. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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, Aljoma Lumber, Inc., Medley, Florida, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Brotherhood of Carpenters and Joiners of America, AFL–CIO, Local Union No. 1554 as the exclusive bargaining representa- tive 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 full-time and regularly scheduled part-time drivers, production and maintenance employees employed by Respondent at its 10300 N.W. 121st Way, Medley, Florida facility; but excluding all other classifications including dispatchers, office clerical employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Medley, Florida, copies of the attached no- tice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 12 after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent 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 Respon- dent to ensure that the notices 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 proceedings, the Respondent shall duplicate and 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.” mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since February 3, 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. October 20, 1998 Sarah M. Fox, Member Wilma B. Liebman, 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 Brother- hood of Carpenters and Joiners of America, Local Union No. 1554 as the exclusive representative of the employ- ees 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 full-time and regularly scheduled part-time drivers, production and maintenance employees employed by us at our 10300 N.W. 121st Way, Medley, Florida fa- cility; but excluding all other classifications including dispatchers, office clerical employees, guards and su- pervisors as defined in the Act. ALJOMA LUMBER, INC.