Span Construction & Engineering

334 NLRB No. 8 1 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. King Curb, a Division of Span Construction and En- gineering, Inc. and Sheet Metal Workers Inter- national Association, Local Union No. 162, AFL–CIO. Case 32–CA–18729 May 18, 2001 DECISION AND ORDER BY CHAIRMAN HURTGEN AND MEMBERS TRUESDALE AND WALSH Pursuant to a charge filed on February 16, 2001, the Acting General Counsel of the National Labor Relations Board issued a complaint on February 22, 2001, 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 32–RC–4827. (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 March 13, 2001, the Acting General Counsel filed a Motion for Summary Judgment. On March 15, 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. 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 unit determination in the representa- tion proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent seeks to adduce at a hearing allegedly newly discovered and previously un- available evidence, and it alleges special circumstances that would require the Board to reexamine the decision made in the representation proceeding. We conclude that the proffered evidence is not newly discovered or previ- ously unavailable. Nor would such evidence, if adduced, establish special circumstances. Accordingly, we reject the Respondent’s contention that the Acting General Counsel’s Motion for Summary Judgment should be de- nied.1 Instead, we find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh 1 We reject the Acting General Counsel’s motion to strike portions of the Respondent’s Opposition. We have considered the Respondent’s contentions, and we have rejected them. Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judg- ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, King Curb, a Division of Span Con- struction and Engineering, Inc., a corporation, at its facil- ity in Madera, California, has been engaged in the fabri- cation of roof curbing. During the 12 months preceding the issuance of the complaint, the Respondent, in the course and conduct of its business operations, sold and shipped goods or provided services valued in excess of $50,000 directly to customers located outside the State of California. 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 organiza- tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held January 18, 2001, the Un- ion was certified on January 26, 2001, 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 Madera, California facility, excluding all managerial and administrative employees, salespersons, 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 Since on or about February 8, 2001, the Union has re- quested the Respondent to recognize and bargain and, since on or about February 13, 2001, 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 13, 2001, 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. 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, King Curb, a Division of Span Construction and Engineering, Inc., Madera, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Sheet Metal Workers International Association, Local Union No. 162, AFL– CIO as the exclusive bargaining 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 full-time and regular part-time production and maintenance employees employed by the Employer at its Madera, California facility, excluding all managerial and administrative employees, salespersons, 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 Madera, California, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 32, 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 February 13, 2001. (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. May 18, 2001 Peter J. Hurtgen, Chairman John C. Truesdale, Member Dennis P. Walsh, 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 violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Sheet Metal Workers International Association, Local Union No. 162, AFL–CIO 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 regular part-time production and maintenance employees employed by us at our Madera, California facility, excluding all managerial and admin- istrative employees, salespersons, office clerical em- ployees, guards, and supervisors as defined in the Act. KING CURB, A DIVISION OF SPAN CONSTRUCTION AND ENGINEERING, INC.