RC Aluminum Industries

334 NLRB No. 64 NOTICE: This opinion is subject to formal revision before publication in the bound 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. RC Aluminum Industries, Inc. and RC Erectors, Inc. and Local Union No. 272 and Shopmen’s Local Union No. 698 of the International Association of Bridge, Structural, Ornamental, and Rein- forcing Ironworkers, AFL-CIO. Case 12–CA– 21323 July 5, 2001 DECISION AND ORDER BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND TRUESDALE Pursuant to a charge filed on February 14, 2001,1 the Acting General Counsel of the National Labor Relations Board issued a complaint on March 8, 2001, alleging that RC Aluminum Industries, Inc. and RC Erectors, Inc., jointly referred to as the Respondent, have violated Sec- tion 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 12–RC–8506. (Official notice is taken of the “record” in the representation pro- ceeding 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 denying in part the allegations in the com- plaint. On April 10, 2001, the Acting General Counsel filed a Motion for Summary Judgment. On April 11, 2001, 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 May 1, 2001, the Respondent filed an opposition to the Acting General Counsel’s Mo- tion for Summary Judgment and a Cross Motion for Summary Judgment. Subsequently, the Acting General Counsel filed a response to the Respondent’s opposition and cross motion, and 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 the Board’s findings in the representation pro- 1 Although the Respondent’s answer to the complaint denies having knowledge or information sufficient to form a belief as to the date the charge was filed and mailed, a copy of the charge and letter of service of the charge are attached to the Actin g General Counsel’s motion, and the Respondent has not challenged the authenticity of those documents in response to the Notice to Show Cause. ceeding regarding the appropriate units and the Respon- dent’s single employer status. 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.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, RC Aluminum Industries, Inc. and RC Erectors, Inc., Florida corporations with their headquarters/main production facility, as well as other production facilities, located in Miami-Dade County, Florida, and jobsites located at various locations in the State of Florida, have been engaged in the business of manufacturing and installing windows, handrails, and doors. At all material times, RC Aluminum Industries, Inc. and RC Erectors, Inc. have been affiliated business en- terprises with common officers, ownership, directors, management, and supervision; have formulated and ad- ministered a common labor policy; have shared common premises and facilities; have provided services for and made sales to each other; have interchanged personnel with each other; and have held themselves out to the pub- lic as a single-integrated business enterprise. Based on the operations described above, RC Alumi- num Industries, Inc. and RC Erectors, Inc. constitute a single-integrated business enterprise and a single em- ployer within the meaning of the Act. During the 12-month period preceding issuance of the complaint, RC Aluminum Industries, Inc. and RC Erec- tors, Inc., in conducting their business operations de- scribed above, have purchased and received goods and materials valued in excess of $50,000 directly from points outside the State of Florida. We find that RC Aluminum Industries, Inc. and RC Erectors, Inc., individually, and as a single employer, are employers engaged in commerce within the meaning of 2 Members Liebman and Hurtgen did not participate in the underly- ing representation proceeding. They find, however, that the Respon- dent has not raised any new matters that are properly lit igable in this unfair labor practice case. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Section 2(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 elections held July 21, 2000, the Union was certified on November 9, 2000, as the exclusive col- lective-bargaining representative of the employees in the following appropriate units: UNIT A: All full-time and regular part-time production and maintenance employees and truck drivers em- ployed by the Employer at its facilities in Miami-Dade County, Florida, including the shipping clerk and the receiving clerk; but excluding purchasing clerks, esti- mators, draftsmen, secretaries, receptionists, accounting employees, personnel clerks and all other office clerical employees, guards and supervisors as defined in the Act. UNIT B: All full-time and regular part-time installers, including installers who meet the eligibility formula set forth in Daniel Construction, 133 NLRB 264 (1961), as modified, 167 NLRB 1078 (1967), employed by the Employer (RC Aluminum Industries, Inc. and RC Erectors, Inc.); but excluding office clerical 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 By letters dated November 20, and December 15 and 19, 2000, and January 19, 2001, and by its unfair labor practice charge filed February 14, 2001, the Union re- quested the Respondent to recognize and bargain with it as the exclusive collective-bargaining representative of units A and B.3 The Respondent’s answer admits, and 3 The Respondent’s answer denies the allegation that the Union re- quested bargaining by letters dated November 20, and December 15 and 19, 2000, and January 19, 2001. In addition, in its opposition and Cross Motion for Summary Judgment, the Respondent argues that those letters did not constitute proper demands for bargaining because they were not sent by both Local 272 and 698 in their capacity as the cert i- fied joint representative of units A and B. Rather, Local 698 sent sepa- rate letters stating that it was the “sole” representative of unit A, and Local 272 sent separate letters stating that it was the “sole” representa- tive of unit B. We find that the Respondent has not raised any issue warranting de- nial of the Acting General Counsel’s Motion for Summary Judgment. Even assuming that the letters separately sent by Local 272 and Local 698 were not by themselves proper demands for bargaining, the subse- quent refusal-to-bargain charge filed in this proceeding clearly was a sufficient demand. Thus, that charge identified the Union as both Local 272 and Local 698, alleged that the Respondent had “informed the undersigned that it was refusing to bargain and negotiate with the Un- we find, that since on or about November 20, 2000, the Respondent has failed and refused to recognize and bar- gain with the Union as the exclusive collective- bargaining representative of units A and B.4 We find that the failure and refusal to do so constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing on and after November 20, 2000, to recognize and bargain with the Union as the exclusive collective-bargaining representative of em- ployees in the appropriate units, the Respondent has en- gaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Sec- tion 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 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, RC Aluminum Industries, Inc. and RC Erec- tors, Inc., Miami-Dade County, Florida, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Local Union No. 272 and Shopmen’s Local Union No. 698 of the International Association of Bridge, Structural, Ornamental, and Rein- forcing Iron Workers, AFL–CIO, as the exclusive bar- ion,” and was signed by Kevin Wallace in his capacity both as presi- dent of Local 272 and as district representative of Local 698. We find that this charge, either by itself, or together with the earlier letters, constituted a valid demand for bargaining. See, e.g., Parkview Manor, 321 NLRB 477 (1996); and Williams Enterprises, 312 NLRB 937, 938–939 (1993), enfd. 50 F.3d 1280 (4th Cir. 1995). 4 The Respondent’s December 21, 2000 letter to Local 272 and Feb- ruary 2, 2001 letter to Local 698 stated that the Respondent was refus- ing to bargain because it intends to seek judicial review of the Board’s findings in the representation proceeding. RC ALUMINUM INDUSTRI ES 3 gaining representative of the employees in the bargaining units. (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 units on terms and conditions of employment and, if an understanding is reached, embody the understand- ing in a signed agreement: UNIT A: All full-time and regular part-time production and maintenance employees and truck drivers em- ployed by the Employer at its facilities in Miami-Dade County, Florida, including the shipping clerk and the receiving clerk; but excluding purchasing clerks, esti- mators, draftsmen, secretaries, receptionists, accounting employees, personnel clerks and all other office clerical employees, guards and supervisors as defined in the Act. UNIT B: All full-time and regular part-time installers, including installers who meet the eligibility formula set forth in Daniel Construction, 133 NLRB 264 (1961), as modified, 167 NLRB 1078 (1967), employed by the Employer (RC Aluminum Industries, Inc. and RC Erectors, Inc.); but excluding 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 Miami-Dade County, Florida, copies of the attached notice marked “Appendix.”5 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 12, after being signed by the Respondent’s author- ized representative, 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 Respondent to ensure that the notices are not al- tered, 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 facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since November 20, 2000. 5 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.” (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. July 5, 2001 Peter J. Hurtgen, Chairman Wilma B. Liebman, Member John C. Truesdale, 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 Local Union No. 272 and Shopmen’s Local Union No. 698 of the Interna- tional Association of Bridge, Structural, Ornamental, and Reinforcing Iron Workers, AFL–CIO, as the exclusive representative of the employees in the bargaining units. 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 units: UNIT A: All full-time and regular part-time production and maintenance employees and truck drivers em- ployed by us at our facilities in Miami-Dade County, Florida, including the shipping clerk and the receiving clerk; but excluding purchasing clerks, estimators, draftsmen, secretaries, receptionists, accounting employees, personnel clerks and all other office clerical employees, guards and supervisors as defined in the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 UNIT B: All full-time and regular part-time installers, including installers who meet the eligibility formula set forth in Daniel Construction, 133 NLRB 264 (1961), as modified, 167 NLRB 1078 (1967), employed by us; but excluding office clerical employees, guards and su- pervisors as defined in the Act. RC ALUMINUM INDUSTRIES, INC. AND RC ERECTORS, INC.